Reeve and Reeve
[2013] FCCA 65
•18 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REEVE & REEVE | [2013] FCCA 65 |
| Catchwords: FAMILY LAW – Children – relocation to Melbourne – shared care at present – mother diagnosed with significant reactive depression – greater family support available for her in Melbourne – impact on child’s relationship with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| B & B (1997) FLC 92-755 MRR & GRR [2010] HCA 4 |
| Applicant: | MS REEVE |
| Respondent: | MR REEVE |
| File Number: | ADC 3207 of 2012 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 27 & 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 18 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Richards |
| Solicitors for the Applicant: | Clelands Solicitors |
| Counsel for the Respondent: | Mr D Berman SC |
| Solicitors for the Respondent: | Barnes Brinsley Shaw Lawyers |
ORDERS
The parties share equally in parental responsibility for their child [X] born [in] 2008.
The mother is at liberty to relocate [X]’s primary place of residence to Melbourne from 28 September 2013.
Pending [X]’s relocation to Melbourne
[X] lives with each parent on a fortnightly basis as follows:
(a)with the mother:
1. each alternate week from 4.00pm on Friday until 4.00pm on Wednesday (provided that [X] shall spend time with the father between 10.00am and 1.00pm on the Saturday to attend his swimming lessons); and
2. each intervening week from 8.00am on Monday until 4.00pm on the following Wednesday;
(b)with the father:
1. each alternate week from 4.00pm on Wednesday until 8.00am on the following Monday; and
2. each intervening week from 4.00pm on Wednesday until 4.00pm on the Friday;
provided that [X] may spend time with his mother from 8.00am until 8.30am on Thursday and Friday mornings so that she may transport [X] to his Montessori Kindergarten sessions, unless otherwise agreed between the parties.
[X] spend time with each parent on special occasions as may be agreed between them.
Upon [X] relocating to Melbourne in September 2013
In the event the father relocates to Melbourne then [X] lives with each parent on a fortnightly basis as agreed, or as follows:
(a)with the mother:
1. each alternate week from 4.00pm on Friday until 4.00pm on Wednesday; and
2. each intervening week from 8.00am on Monday until 4.00pm on the following Wednesday;
(b)with the father:
1. each alternate week from 4.00pm on Wednesday until 8.00am on the following Monday; and
2. each intervening week from 4.00pm on Wednesday until 4.00pm on Friday.
In the event the father remains living in Adelaide then the following orders will apply.
Until [X] commences school in 2014 he shall spend time with the father as follows:
(a)at times to be agreed in Melbourne, upon the father giving the mother reasonable notice of his intentions;
(b)in Adelaide:
1. one weekend in every four weeks from Friday until Sunday (or Monday in the event of a public holiday);
2. for four one week periods during the Christmas 2013 school holiday (or such other times totalling four weeks as the parties may agree); and
3. at such other times as may be agreed between the parties;
Upon [X] commencing school in 2014 he shall spend time with the father as follows:
(a)In Adelaide, for two weekends each school term at times to be agreed (noting that if there are coinciding long weekends in Adelaide and Melbourne then these weekends shall be included in those two weekends whenever possible);
(b)For one half of each mid year school holiday period at times to be agreed between the parties in 2014, to be extended to a period of 10 days in all subsequent years;
(c)For four weeks during the Christmas school holiday period each year (to include Christmas Day in 2014 and alternate years thereafter);
(d)at times to be agreed in Melbourne, upon the father giving the mother reasonable notice of his intentions;
(e)At such other times as may be agreed between the parties.
The mother meet all costs associated with [X]’s flights or travel to and from Adelaide and set aside the sum of $10,000 from her property settlement proceeds to contribute towards her ongoing expense in this regard.
The mother accompany [X] or arrange for him to be accompanied by a suitable adult until such time as the parties agree [X] is sufficiently mature to fly unaccompanied.
The parties facilitate [X]’s regular communication with his father by telephone, Skype, email, Facebook and all other electronic means when [X] is in his mother’s care.
The parties facilitate [X]’s communication with the mother by telephone, Skype, email, Facebook and all other electronic means when [X] is in his father’s care.
Both parents are at liberty to maintain regular communication with [X]’s school and to receive all school records and newsletters and other information relating to [X]’s activities, involvement and progress at school.
Both parents are at liberty to attend all parent/teacher interviews and other school events to which parents are usually invited.
IT IS NOTED that publication of this judgment under the pseudonym Reeve & Reeve is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3207 of 2012
| MS REEVE |
Applicant
And
| MR REEVE |
Respondent
REASONS FOR JUDGMENT
[X] is just four years old. His parents, Ms Reeve and Mr Reeve, separated in September 2011 and have effectively shared responsibility for [X]’s day to day care since then. Both parents bring a high level of competence and goodwill to their co-parenting relationship and [X] has benefitted from his parents’ commitment in this regard.
[X]’s maternal grandparents and extended maternal family live in Melbourne. His mother wants to return to live in Melbourne where she will enjoy the support of her family and she believes it is in [X]’s best interests that he move to live in Melbourne with her. Her preferred outcome is that [X]’s father move to live in Melbourne as well, so that they can continue the current shared parenting regime.
Mr Reeve does not want [X] to move away from Adelaide. He believes the disruption that would inevitably follow such a move is not in [X]’s best interests, particularly the disruption to their father/son relationship. Mr Reeve sees his own future securely based in Adelaide. He understands that the mother may choose to return to Melbourne but if so, he says [X] should remain living in his primary care in Adelaide.
The parents have been unable to reach agreement about their son’s future living arrangements, and it now falls to the Court to determine where [X]’s future best interests lie.
Background
The mother was born in 1973 and is 39 years old. The father was born in 1980 and is 33 years old. Ms Reeve moved to live in Adelaide in 2000. She obtained employment and eventually purchased a property here, with the assistance of her parents. She enjoyed her life in Adelaide for many years.
The parties met in 2002 and began living together in May 2003. They lived together for a number of years before eventually marrying in [omitted] 2007.
The father was employed full time as a [omitted]. The mother worked full time as an [omitted] until her pregnancy. In [omitted] 2008 the mother aggravated a pre-existing spinal disc injury and spent the last three months of her pregnancy effectively confined to bed.
[X] was born on [date omitted] 2008. The mother stayed at home until he was approximately 10 months old before commencing part time casual employment in the [omitted] industry. The father continued working full time at [omitted]. In addition, he took on a position with [omitted] commencing in the 2009 season, which required extra weekend work. Both parents were devoted and committed parents but the mother was clearly the primary parenting figure in [X]’s life during his infancy.
The mother had previously suffered anxiety from time to time in the past. The stress of her back injury and the lack of family support in Adelaide led to her becoming increasingly unhappy. These feelings came into sharper focus during her pregnancy and the mother began feeling an increasing pull back to the family support available to her in Melbourne.
The father acknowledges that the mother raised this issue on numerous occasions during their marriage although he says he did not really believe she was serious until the months following [X]’s birth. The parties then began discussing the possibility more seriously and the father began applying for [omitted] positions in Melbourne. He was offered a position at [omitted], but the parties decided it was not financially viable to take up that offer.
The mother continued to feel depressed and unsupported in Adelaide and also became increasingly unhappy within the marital relationship. In 2010, she sought counselling to try and work through these issues and to improve her psychological functioning. Despite this support, she continued to experience significant depression and the interpersonal problems within the marriage continued.
The parties eventually separated in September 2011. Initially they each moved in and out of the former matrimonial home, to share their parenting responsibilities and minimise any disruption for [X]. That arrangement ceased in February 2012, when the father moved into other accommodation. Thereafter the parties continued to care for [X] equally, such that he spends seven nights per fortnight in each parent’s care.
At the time the parties separated, [X] was spending two days per week at Montessori kindergarten. He now attends three days per week at the kindergarten. The mother supported the father’s parenting role by caring for [X] on the remaining week days while the father was at work. The level of co-operation between the parties reflects their mutual respect and trust in each other as parents, and speaks highly of their genuine and ongoing commitment to their young son.
Despite the high level of co-operation between the parents, the mother continues to struggle with depression. Ms Reeve feels unsupported in Adelaide and sees a brighter, more emotionally settled life for her and [X] in Melbourne. She has raised this issue with the father, but the parties were unable to reach any agreement and accordingly, the mother issued these proceedings on 21 August 2012.
The parties consented to interim parenting orders on the first return date together with an order for the preparation of a family assessment report. A family assessment report was prepared by Ms C on 22 November 2012. The parties entered into further negotiations but were unable to reach agreement and accordingly the matter was listed for trial on 27 March 2013.
The hearing
The hearing proceeded on 27 and 28 March 2013. Both parties attended and were cross examined. The wife also relied upon affidavits filed by her sister and her father (subject to certain objections that were dealt with by consent between the parties). Ms C also gave evidence and was available for cross examination, as was the mother’s current treating psychologist, Mr L.
The mother had not filed any report from Mr L and was intending to rely upon Ms C’s report. The mother’s psychological health was obviously a significant factor in the hearing and Counsel for the father made it clear his client did not accept that Ms C’s opinion could stand in the place of the mother’s treating psychologist. Ms C met the mother only once and her brief was to prepare a family assessment report, not an opinion as to the mother’s psychological health.
Accordingly Mr L attended on the second day of hearing and his opinion was presented by way of oral evidence. He was also then cross examined. The father was critical of Mr L’s evidence and the quality of treatment provided by him. Mr L may adopt an unorthodox approach occasionally, such as referring the mother for a one off consultation with a ‘spiritual intuit’, but he was clear and succinct when expressing his professional opinion in the witness box.
Ms C’s evidence was of great assistance to the Court. She was highly professional during cross examination and able to make appropriate concessions when necessary. Ms C was very even handed, but ultimately expressed a clear and measured opinion, focussing directly on her assessment of [X]’s best interests.
At the conclusion of the hearing, I thanked Counsel and the parties for the unusually high level of courtesy and mutual respect that had been displayed during the hearing. It is a rare case in this Court where both parents speak so respectfully about the other parent, and demonstrate such genuine empathy about the distress that these proceedings will inevitably bring to one parent or the other.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in their child’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties and obligations.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FLC FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[1] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346 @ para.10
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are 13 additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the child’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted. The mother acknowledges that an order for equal shared parental responsibility is appropriate and I agree with that submission.
An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent.
As discussed by the High Court in MRR v GR[2], s.65DAA involves a two step process. First, the Court must ask whether equal time (or substantial and significant time) is in the child’s best interests. If the answer to that question is “yes”, the Court must also ask whether such an outcome is “reasonably practicable”. It is only when both questions are answered in the affirmative that the Court must consider making an order for equal time or substantial and significant time.
[2] MRR v GR [2010] HCA 4 2 para.13
Relocation disputes are particularly difficult cases to determine. Whatever decision the Court makes about the child’s best interests, one parent will inevitably feel aggrieved and distressed by the outcome.
While the child’s best interests is the Court’s primary consideration, it is not the only consideration. Weighing up the child’s right to a meaningful relationship with both parents against a parent’s right to freedom of movement is a process that requires careful analysis.[3] However, the Court’s responsibility in such cases is no different to any other parenting dispute, at the end of the day. If, after careful analysis, the child’s best interests conflict with a parent’s right to live where they choose, the Family Law Act requires that the children’s interests should prevail.[4]
[3] B & B (1997) FLC 92-755
[4] AMS v AIF; AIF v AMS (1999) FLC 92-852, per Kirby J
The authorities have consistently stated that each party’s parenting proposal, including any proposed relocation, must be assessed against the relative legislative considerations.[5] In Morgan & Miles [2007] FamCA 1230, Boland J considered the principles applicable to determining relocation applications. Her Honour observed:
“That the child’s best interest remains the paramount, but not the sole consideration; that a parent wishing to move does not need to demonstrate compelling reasons; that a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests; that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement”.
What the legislation now requires is a consideration of the competing proposals against the criteria in section 60CC, informed by section 60B, and if a parenting order is made or proposed to be made and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility must be considered”.[6]
[5] Morgan & Miles [2007] FamCA 1230; McCall & Clark (2009) FLC 93-405;
[6] Morgan & Miles supra @ para.80-81
Two years later the Full Court said in McCall & Clark (2009) FLC 93‑405:
“… it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a)whether equal time (or substantial and significant time) with both parents would be in the child’s best interests;
(b) consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5); and then
(c) consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;[7]
[7] McCall & Clark, supra @ para.69
The 2006 amendments to the Family Law Act emphasise the children’s right to maintain a meaningful relationship with each parent.[8] The legislation does not define what is meant by a meaningful relationship but the concept has been discussed at length in various judgments since the amendments were introduced. In McCall & Clark, the Full Court also endorsed the comments of Brown J in Mazorski & Albright (2007) 37 FamLR 518 where Her Honour said:
“A meaningful relationship or meaningful involvement is one which is important, significant and valuable to a child.”
Her Honour went on to note that it is a qualitative adjective, not strictly a quantitative one. That is to say, a meaningful relationship should be measured by the quality of the parent/child relationship, not simply by the number of hours or nights spent together.
[8] See ss.60B(1)(a), 60CC(2)(a)
Both parties support [X]’s right to maintain a meaningful relationship with the other parent, but they disagree about whether that relationship can be successfully maintained if he lives a long distance from one parent.
I will address the relevant considerations set out in s.60CC in order to identify those factors that are most significant in determining the child’s best interests. My discussion of many of the additional considerations will be very brief, given neither party raises any criticisms about the other. I will then set out my conclusions regarding the living arrangements that I consider will be in [X]’s best interests.
Section 60CC – primary considerations
Both parties acknowledge that [X] has a close, loving relationship with the other parent. Both parties have “a meaningful relationship” with [X], in every sense of the word. Fortunately there are no issues of abuse, neglect or family violence in [X]’s world.
Section 60CC(3) – Additional considerations
(a) the child’s views
[X] is too young to be interviewed.
(b) the child’s relationship with each of his parents and others
There is no question that [X] enjoys a loving and fulfilling relationship with each of his parents. Ms C spoke very positively about [X]’s interaction with both parents.
The mother is very close to her extended family, including her parents and sister, who all live in Melbourne. I have no doubt that Ms Reeve takes every opportunity to promote and support [X]’s relationship with his extended family and the father acknowledges the importance of these relationships for [X] as well.
The father’s relationship with his extended family may be a little more distant, but he sees them regularly. I am confident that [X] will grow up with a sense of his place within his extended paternal family in Adelaide. Both parents will continue to support [X]’s relationship with his extended family, no matter where [X] is living.
(c) the extent to which each parent has taken the opportunity to participate in decision making and spend time with the child; (f) the capacity of the parents to provide for the child’s needs; and (i) the attitude each parent demonstrates to the child and to the responsibilities of parenthood
I will discuss these considerations together, as they are inter-related.
There is no doubt that both parents have taken every opportunity to be involved in [X]’s day to day parenting and in the decision-making responsibilities surrounding his care, welfare and development.
The mother took on the primary parenting responsibility for [X] as an infant and small toddler. The father’s involvement in [X]’s day to day care necessarily occurred outside his working hours as a teacher and part time football coach. These comments should not be taken as implying any lack of commitment from the father, but nonetheless the care arrangements reflect [X]’s emotional experience at that very young age, in terms of the strength of his early attachment relationships with each parent.
Both parents are deeply committed to [X]’s ongoing development and are actively involved in all aspects of his day to day care. The mother may still provide a larger proportion of [X]’s direct care, but the Court should not assess the parties’ commitment to their parenting responsibilities by a microanalysis of the hours of direct care they each now provide. Both parents balance their working and parenting lives appropriately.
The father argues that the mother’s plans for a new life in Melbourne are poorly thought out, but I reject that criticism. Ms Reeve has a clear idea about where she and [X] might live and what schools he might attend. She no longer has a guaranteed job, but she does have the guarantee of ongoing family support.
(ca) commitment to maintain the child
Both parties contribute towards [X]’s financial support, in accordance with their respective incomes. The mother was unable to take up the job offered to her through [omitted] in Melbourne, but continues to work part time in Adelaide.
Ms Reeve intends seeking other employment in Melbourne, but the presence or absence of a ‘guaranteed’ position in Melbourne does not weigh greatly in my determinations.
(d) the effect of any changes in the child’s circumstances, including the effect of any separation from either parent
This is really the crux of the Court’s determinations in relation to [X]’s best interests. There is no doubt that the mother’s desire to move to Melbourne will impact significantly upon [X]’s day to day life. [X] presently spends seven nights per fortnight living with each of his parents. If [X] moves to Melbourne and his father remains in Adelaide, then [X] loses the benefits that flow from having both parents so actively involved in his day to day care. If [X] remains in Adelaide with his father but his mother moves to Melbourne, the same consequences follow.
There are two other options for [X]’s future living arrangements. If [X] is not allowed to move to Melbourne, then the mother may remain in Adelaide – indeed, she has clearly indicated that she would do so. A great deal of the trial focussed on the implications of such an outcome, in terms of the mother’s psychological and emotional health.
The other option is that [X] moves with his mother to Melbourne and the father follows – again, the father has indicated very clearly that his life and career is settled in Adelaide and that he does not intend relocating to Melbourne, even if [X] moves. He considers the disruption of such a move outweighs the benefits.
It is here that the family assessment report provides a great deal of assistance and insight. Ms C was clear that the best option for [X] is to continue to have both parents involved in his day to day care on a regular and extended basis, as occurs presently. Ms C’s report summed it up thus:
“If Ms Reeve, who has been [X]’s primary caregiver, and continues to provide more of the care than Mr Reeve (caring for [X] during the day while Mr Reeve works), were to relocate without [X], this would likely have a significantly negative impact on [X]’s functioning, given their attachment relationship.
… it is likely that [X] has also formed a very close attachment to his father, who provides a significant amount of care for [X], and moving away from him (to go with Ms Reeve) to Melbourne would also involve loss and grief, and require adjustment.”[10]
[10] Family Assessment Report dated 22 November 2012, p.10, Annexure BSF1 to the Affidavit of Mr F filed 29 November 2012
Ms C was clear that [X]’s best interests are promoted by having both parents involved in his primary care, as presently occurs. She noted that [X] is young to be in a shared care arrangement but that he appears to be managing it well and his development is proceeding normally. She further noted that this reflects very well on Mr and Ms Reeve who have developed a co-operative, co-parenting relationship despite the stress associated with the breakdown of their marriage.[11]
[11] Supra, p.12
We know that if [X] is not allowed to relocate to Melbourne, the mother will also remain in Adelaide. At one level, this outcome seemed to impose the minimum disruption upon [X]. He would continue to have both parents involved in his day to day care and he will avoid the disruption of potentially being separated from one parent or the other.
While this approach is superficially attractive, it ignores the evidence from Ms C and Mr L about the impact upon the mother, should she remain in Adelaide. Both Ms C and Mr L discussed the mother’s diagnosis of reactive depression and anxiety. Ms C said:
“The social support available to Ms Reeve in Melbourne, in addition to the family-friendly job she has been offered in Melbourne, a significant improvement on work she has been able to find in Adelaide (not having family to help care for [X]), are likely to assist her recovery. Social science literature that [sic] indicates the risks to children’s development in a range of areas (e.g., cognitive, social, emotional) if their caregivers experience significant and ongoing depression and anxiety, and a parent being preoccupied with their own struggle/distress post-separation is one of the biggest risk factors for a child’s adjustment to separation/divorce.”[12]
[12] Family Assessment Report, p.12
Further on in the report, Ms C says:
“… Treatment for depression often needs to involve a bio‑psychosocial approach, and the social aspects are on offer in Melbourne (close family support and a suitable job), but not Adelaide. Her desire to move has been longstanding, and although there is a risk that Ms Reeve may continue to experience some vulnerability to anxiety and depression even after moving, it is considered that Ms Reeve living in Melbourne near her family will provide the best support for her functioning.”[13]
[13] Supra, p.13
Mr L agreed with Ms C. Mr L gave his opinion that the mother is suffering from a reactive depression (sometimes also called a “situational depression”). In evidence, Mr L acknowledged that the mother is still functional – she is caring appropriately for [X], she is holding down a part time job and so on. He described her as “very determined”. But he went on to point out that the mother will continue to experience depression and that it may eventually impact upon [X], who will continue to be exposed to his mother’s depression.
Both Ms C and Mr L were very clear that strong bio psycho-social support, such as would be available to the mother in Melbourne, has a very positive co-relation with strong mental health and provides the “gold standard” environment for successful treatment of depression.
Therein lies the nub of this difficult decision. While an outcome where both parents and [X] remain in Adelaide seems to impose no change for [X], the reality is that [X]’s experience of his mother’s emotional availability may change.
Ms C noted that, based on her own observations of the mother and the mothers DASS[14] scores, that the mother met the criteria for significant depression. She spoke with Mr L in the course of completing her report, who confirmed a similar diagnosis.
[14] Depression and Anxiety Stress Scales (a self assessment tool utilised in psychological diagnosis and treatment)
Prior to entering the witness box, Ms C was provided with a copy of the parties’ trial affidavits, together with the records from the mother’s past treating psychologists and Mr L. She commented that the psychologists’ notes confirmed her opinion that the mother is experiencing a significant reactive depression and is vulnerable to long term depression.
Ms C noted that the mother had a similar high DASS score during an interview with Ms R in May 2010, suggesting that the mother’s depression has been long standing. She further noted that the records from Ms R and Mr L were consistent with her own opinion and her own observations of the mother’s flat affect during the interview.
Ms C conceded that it was possible that the mother was simply saying what Ms C “needed to hear”, to obtain a supportive outcome from
Ms C’s assessment. However Ms C was confident of her professional capacity to assess the mother’s presentation. She noted that the mother’s flat affect, tearfulness, and her description of past events and past stressors was consistent with a diagnosis of reactive depression and was consistent with the previous diagnoses from Mr L and Ms R.
I accept Ms C’s evidence in this regard.
The relevance of this diagnosis to [X]’s best interests is clear. Ms C said that depression brings with it the risk of compromising a party’s parenting capacity. Indeed, that is why it is relevant to her role as a family assessor to undertake some evaluation of each parent’s psychological functioning. She went on to say that reading the psychologists’ notes supported her opinion as expressed in her report – that the mother has a long term vulnerability to depression which could compromise her parenting, if not properly managed.
Ms C agreed with Counsel for the father that it was difficult to see that [X] could really be doing any better than he is at present. She agreed that if the mother continued at her present level of functional parenting, supported by ongoing counselling and social support in Adelaide, then it may be in [X]’s best interests for both of his parents to remain here.
However Ms C went on to say that if the mother felt forced to remain in Adelaide (ie, because [X] was not allowed to relocate and she would not relocate without him) she may eventually become unable to contain her emotional distress, which would impact upon her parenting and upon [X]’s experience of her parenting and of life in her care.
Ms C went on to note that the mother presently appeared quite depleted by the absence of family support and that she had been wanting to move to Melbourne for over four years. Ms C further noted that this outcome may also place significant strain upon the mother’s attitude towards the father (who she may hold responsible for feeling ‘trapped’ in Adelaide), which has the potential to undermine the parties’ present co-operative co-parenting relationship.
Ms C agreed with Mr L when he said that if the mother “were required to stay in Adelaide, while ultimately she would deal with that, she would have significant difficulty doing so”.[15] It is noteworthy that the mother continues to present with significant depression, despite engaging with therapeutic support over the past few years.
[15] Family Assessment Report, p.8
Mr L reiterated these concerns while giving evidence. He also commented that children are very attuned to their parents’ emotional welfare and that [X] is likely to be aware of his mother’s depressed mood, at some level. Mr L went on to note that children will often blame themselves if a parent appears unhappy or emotionally withdrawn.
(e) practical difficulty and expense
There is no practical difficulty and expense in the present parenting arrangements. Clearly, if [X] moves to live with his mother in Melbourne (or if Ms Reeve moved without [X]) the distance between Melbourne and Adelaide becomes a significant factor.
If [X]’s parents are not living in the one city (whether Adelaide or Melbourne) he will lose a significant level of connectedness with the parent living elsewhere. Ms C discussed these concerns at length. She noted that:
“If [X] relocates to Melbourne without his father, the risk is that a committed, loving father would become less meaningfully involved in [X]’s upbringing. … [X] would likely have the stability of his mother’s improved functioning and what is described to be very supportive grandparents, to whom he is close, but this would be alongside the loss of his father’s involvement in his day-to-day life. [X] would be likely to be able to maintain a strong and positive emotional connection with his father with regular visits on weekends and during school holidays, given that the foundations for that relationship have been put in place, …. However, while maintaining a loving connection, a long-distance relationship between [X] and
Mr Reeve would obviously be a different type of relationship to what is possible if [X] were to stay in Adelaide.”[16]
[16] Supra, p.13
There would be extensive travel involved, both for [X] and his parents. I note Ms Reeve has indicated that she is prepared to contribute towards the necessary travel costs for [X] to visit his father regularly. She presently has funds available to her that could be set aside, to ensure that the cost of that travel does not become an impediment to [X]’s capacity to maintain a meaningful relationship with both of his parents. The parties would also be able to re-negotiate Mr Reeve’s child support commitment to take into account the extra expense.
(g) [X]’s maturity, sex, lifestyle and background
Both parents agree that [X] is progressing well and meeting all of his developmental milestones. Ms C noted that the parents’ assessments of [X] in response to the Achenbach Child Behaviour Checklist (CBCL) indicate [X] is demonstrating age appropriate social, emotional and behavioural functioning, which is a credit to both parents.[17]
[17] Supra, p.12
[X] attends kindergarten at Montessori and has recently increased his attendance to three days per week. He will be commencing school in 2014. Ms C commented that if [X] is to move to Melbourne, it is important he is settled there well before the new school year, bearing in mind that the transition to school is of itself, a significant transition for young children.
Ms C’s ultimate recommendation, in the event [X] does move to live in Melbourne, was that:
“There be consideration given to delaying this move for as long as possible (e.g. six months to a year), while still occurring in time for [X] to start school in Melbourne. Although the writer is confident that [X]’s attachment to his father is well developed and strong enough at this stage to allow for them to stay emotionally connected if they are living apart, more time, even a period of months, allows for more shared experiences and the building of more shared memories.”[18]
[18] Supra, p.14
I do not consider any of the remaining s.60CC(3) criteria are relevant to [X]’s best interests.
Conclusion
Both parents support an order for equal shared parental responsibility and I have no doubt that this outcome is in [X]’s best interests. Accordingly, s.65DAA requires that the Court ask two separate questions:
a)Is it in [X]’s best interests that he spend equal time with each of his parents?
b)Is it reasonably practicable that [X] spend equal time with each of his parents?
If both questions are answered in the affirmative, then the Court must consider making an order for [X] to spend equal time (or live equally) with each of his parents.
This is a very difficult case. I agree with Ms C that none of the potential outcomes are “risk free” in terms of [X]’s future welfare and development. If [X] moves to Melbourne and his father remains in Adelaide, then [X] loses the day to day care from a devoted and committed father who has a great deal to offer his young son.
If [X] is not allowed to move and the mother remains in Adelaide, [X] will live half time with a parent who feels trapped and unhappy and whose functional parenting may be undermined, to [X]’s long term emotional cost.
I have no doubt that it is in [X]’s best interests that he spend equal time with each of his parents. However, I am not satisfied that it is reasonably practicable that he do so. As the High Court commented in MRR & GR[19] , a Judge is “… obliged to consider the circumstances of the parties, more particularly those of the mother, [ie on the facts of that case] in determining whether equal time parenting was reasonably practicable”. The reference to the circumstances of the mother is equally applicable to this case.
[19] MRR & GRR [2010] HCA 4 at para.15
I conclude that a close consideration of the mother’s circumstances lead to the inevitable conclusion that there is a significant risk that the mother’s mental health and parenting capacity will be compromised if she remains living in Adelaide. Therefore it is not reasonably practicable for [X] to spend equal time, or substantial and significant time in the care of both of his parents.
In reaching this conclusion I return to the evidence from Ms C and from Mr L. Ms C was very measured in the witness box (and in her report) and I found her evidence of great assistance in determining [X]’s future living arrangements. Ms C acknowledged that she cannot guarantee that the mother’s mental health will improve if she is allowed to move to Melbourne, but went on to reiterate that mental health research indicates that stronger bio-psychosocial support has a very positive correlation with stronger mental health. She suggested the mother may benefit from additional counselling support in Melbourne, to strengthen her mental health outcomes.
Ms C repeated the views expressed in the closing paragraphs of her report. There are a number of risks involved for [X] whether he moves to Melbourne, or remains living in Adelaide. The mother’s desire to return to Melbourne, where she has a sense of strong family support, has been longstanding. Indeed, Mr Reeve considered his wife’s wishes seriously during their marriage, such that he applied for numerous jobs in Melbourne.
There is no suggestion that the mother’s wish to relocate is an attempt to undermine [X]’s relationship with the father, or to relegate the importance of Mr Reeve’s role in their son’s life. On the contrary, we know that the mother’s preferred outcome is that the father move to live in Melbourne as well, so that they can continue the current shared care regime for [X].
In such a finely balanced case, the Court returns and must be guided by, the views expressed by the independent expert, Ms C. Ms C concluded that:
“… in weighing up the psychological factors, the greater risk to [X] is likely to be Ms Reeve not being supported in her mental health needs. She has been the primary caregiver (and continues to be, given her care of [X] during the days Mr Reeve is at work) and there is no reason for this to change. … Therefore, the primary recommendation is to support Ms Reeve in her functioning, given the importance of this to her parenting capacity.”[20]
[20] Family Assessment Report, p.13
Ms C’s description of the mother as [X]’s primary caregiver is a reflection of the significant emotional attachment that would have developed for [X] as a young infant when the mother was clearly his primary caregiver. It does not imply any lack of effort or commitment on behalf of the father. It does mean, however, that the emotional availability and psychological wellbeing of [X]’s mother will continue to be a very significant factor in [X]’s own future welfare.
Given that [X] now attends Montessori kindergarten, the mother’s actual hours spent attending personally to his day to day care are obviously less now than when he was an infant. Her direct parenting time will reduce still further once [X] commences school in 2014. However the importance of her role in [X]’s emotional experience of ‘being parented’ is not diminished by the fact that [X] is progressing through these developmental milestones. If [X]’s primary parenting attachment figure from his infancy (ie, his mother), becomes less emotionally available to him, this must have a significant impact upon his own sense of emotional security. If his mother becomes more depressed and more withdrawn, this must affect his experience of being emotionally/ psychologically parented by her.
These psychological risk factors are less tangible than the impact upon [X] of spending less time in his father’s care. They are not as easily quantifiable as the number of nights that [X] will miss living with his father. But they are no less significant.
Mr Reeve says he cannot contemplate moving to Melbourne. While it may be a better outcome from [X]’s perspective, I accept that the father has come to this decision after careful consideration. It is not simply a tactic to place pressure on the mother, just as the mother’s wish to move to Melbourne is not an attempt to undermine [X]’s relationship with his father.
I am satisfied that the mother’s psychological wellbeing will be best supported if she and [X] move to live in Melbourne. This outcome provides the greatest likelihood that [X] will grow up with two psychologically robust and resilient parents, even if it comes at the cost of one of his parents living in another state.
In closing submissions Counsel for the father referred to the risk of ‘breaking’ [X]’s relationship with his father if [X] moves to live in Melbourne, or their relationship becoming ‘broken’. I reject that characterisation. Ms C was clear that there was a risk to [X] in “a committed loving father [becoming] less meaningfully involved in [X]’s upbringing”. But she also considered that [X] would be able to maintain “a strong and positive emotional connection with his father with regular visits on weekends and during school holidays”[21]. Clearly their relationship would be different, but that does not mean it is damaged or broken.
[21] Family Assessment report, p.13
I remain acutely aware that moving to Melbourne, and away from the present shared care regime, will have a significant impact on [X]. However I am confident that [X] will continue to maintain a meaningful relationship with his father, whether or not they continue to live in the same city. Allowing [X] to relocate to Melbourne with his mother will also give him the best chance of enjoying “the stability of his mother’s improved functioning”[22] and accordingly, the best chance of continuing to receive the benefit of two high functioning, emotionally resilient and emotionally available parents.
[22] Supra, p.13
Having concluded that it is in [X]’s best interests that he relocate to Melbourne with his mother, it is also in his best interests to put in place orders that will facilitate frequent and regular contact between the father and [X]. The best outcome would be a situation where the father also moves to live in Melbourne. It is also appropriate to confirm that [X] should resume living in a shared parenting regime, in the event both parents are again living in the same city. Given that outcome appears unlikely however, I agree with Ms C that [X] should enjoy the bulk of school holiday periods with his father as [X] gets older, provided he also enjoys some school holiday time with his mother, his extended family and friends in Melbourne.
I also agree with Ms C that the move should occur in the second half of 2013, to allow time for [X] to build more shared experiences and memories of his father. I propose that the mother be permitted to relocate with [X] to Melbourne in September 2013, so that he can finish his third term of kindergarten here in Adelaide. This should allow time for both parents to plan towards the move, but still allow some five months or so for [X] to settle into Melbourne and have a term attending preschool or kindergarten before the new school year commences in February 2014.
I now make orders as set out at the commencement of these Reasons.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 18 April 2013
[9] Mazorski & Albright (2007) 37 FamLR 518 @ para.26
Key Legal Topics
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Family Law
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