Reiner and Bedford
[2014] FCCA 170
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REINER & BEDFORD | [2014] FCCA 170 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 Federal Circuit Court Act 1999 Federal Circuit Court Rules 2001 |
| Paskandy & Paskandy (1999) FLC 92-878 Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 240 CLR 461 Taylor & Barker (2007) FLC 93-345 McCall & Clark (2009) FLC 93-405 Sealy & Archer [2008] CAFC 142 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MS REINER |
| Respondent: | MR BEDFORD |
| File Number: | MLC 5666 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 3 & 4 February 2014 |
| Date of Last Submission: | 14 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr A Barbayannis |
| Solicitors for the Respondent: | Caroline Counsel Family Lawyers |
ORDERS
That all extant orders in respect of the child X (“X”) born (omitted) 2008 be discharged.
That the parents have equal shared parental responsibility for X.
That X live with the mother and that the mother be permitted to relocate X’s primary place of residence to (omitted), Queensland.
That X spend time with and communicate with the father as follows:
(a)On one weekend per month in Melbourne being a consistent weekend within the month unless otherwise agreed between the parents with the mother to be responsible for booking and paying for X’s costs of travel (including any required accompanying adult) such bookings to be on the first reasonably available flight on Friday afternoons/evenings and on return flights not leaving before 5.00pm Sunday unless otherwise agreed between the parties provided that the return flights be on the Monday in the event of a long weekend or a student free school day.
(b)For the entirety of the Queensland second term school holidays, from the first Friday until the last Sunday on the same terms and conditions of order 4 (a) herein;
(c)For one half of the Queensland first and third term school holidays being from the first Friday until the second Saturday evening on the same terms and conditions as order 4 (a) herein;
(d)For one half of the Queensland summer school holidays each year commencing 26 December 2014 and in each alternate year thereafter and commencing 24 December 2015 and in each alternate year thereafter unless otherwise agreed between the parties, and on the same terms and conditions as in order 4 (a) herein.
(e)For one weekend each month in Queensland from the Friday evening to the Sunday evening (but to extend to Monday evening on the event of a long weekend) with the father to give the mother not less than seven days prior notice on each occasion of him electing to take up this time with X failing such notice the mother being entitled to presume that the time will not be taking place and for these purposes the mother vacate her home (in favour of the father during such periods) and with the father to be responsible for his own travel costs.
(f)On other weekends in Melbourne than are most adjacent to the father’s birthday, X’s birthday and Father’s Day on the father’s election and the father to give the mother no less than seven days’ notice of his intention to take such time and that the father be responsible for booking and paying for X’s travel costs (including that of any required accompanying adult).
(g)By Skype each Monday and Thursday at 6.00p.m or otherwise agreed between the parents and reasonably by telephone, email or letter.
(h)Such other time as the parties may agree.
IT IS NOTED that publication of this judgment under the pseudonym Reiner & Bedford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5666 of 2011
| MS REINER |
Applicant
And
| MR BEDFORD |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the one child of the parties X born (omitted) 2008 (“X”) (aged 5 years and 6 months). The applicant is the mother. She seeks an order that X live primarily with her and that she be permitted to relocate with X to live on the (omitted), Queensland. She proposes that X spend time with the father as follows:
a)One weekend each month in Melbourne with the mother to be responsible for the travel costs;
b)Once each month on the (omitted), Queensland with the father to travel at his cost to Queensland and the mother to vacate her residence in his favour and for this purpose;
c)For the first half of the Queensland terms 1 and 3 school holidays;
d)For the entirety of the Queensland term 2 school holidays;
e)For one half of the Queensland long summer school holidays;
f)Time in Melbourne or Queensland on the father’s birthday and X’s birthday and Father’s Day by agreement but to be at the father’s cost;
g)By Skype each Monday and Thursday and reasonably by telephone/email/letter.
The father opposes the proposed relocation of his daughter to Queensland. He proposes that X continue to live primarily with the mother and spend time with him each second weekend and extending to Monday mornings as from term two in 2014 and each Tuesday overnight together with block periods in school holidays.
Background
The mother is 35 years old. She lives in (omitted) in suburban Melbourne. She is part way through a (omitted) course and otherwise engaged in home duties. The mother was raised on the (omitted), Queensland. Her parents and her sister remain living there. The mother herself has not lived permanently on the (omitted), Queensland for some 17 years (except for a short period during a prior separation from the father).
There is no evidence that the mother has re-partnered.
The father is 41 years of age. He has re-partnered with Ms S. They live in rental accommodation at (omitted) Melbourne although the father retains his home at (omitted) Melbourne and stays there on Tuesday nights with X.
The father is a self-employed (omitted).
The parties met in (country omitted) in 1998. The mother moved to live in Melbourne in 1999. They married in (omitted) 2007. X was born on (omitted) 2008.
The parties first separated under the one roof on 6 March 2010. The mother and X moved to a rental property in (omitted) in May 2010. There had been a previous separation for some months in 2009.
In February 2009 the mother was diagnosed with post natal depression and commenced counselling with a psychologist, Ms D.
In August 2010 the parties entered into a Parenting Plan providing that X live with the mother and spend time with the father each Tuesday overnight and for one night each weekend, together with Thursdays from 4:00pm-6:00pm.
That plan was soon amended for the weekend time to run from Friday at 4:00pm until Sunday at 4:00pm. Later still, the father at his discretion discontinued the Thursday afternoon time.
The parties finalised their financial affairs by consent orders made 20 August 2010.
The mother says that she first raised the idea of she and X moving to the (omitted) Queensland in 2012. The father says this issue was first brought to his attention in May 2013.
The mother commenced these proceedings by an Initiating Application filed 12 August 2013. A family report was ordered from Ms B, psychologist. That report was released to the parties on the 9 September 2013 whereupon the matter was placed in the specialist relocation list of this Court and listed for trial to commence 3 February 2014.
The mother has continued counselling for matters of anxiety with a social worker, Ms K from May 2013.
X commenced her first year of formal schooling in Melbourne in the week of this trial.
The evidence
The applicant mother relies on her trial affidavit filed 6 January 2014. She adduced evidence on affidavit from the following:
a)Ms D;
b)Ms K;
c)Ms A (sister);
d)Ms E (mother); and
e)Mr A (father).
With the exception of Ms D, the mother’s witnesses were cross examined. Ms D’s affidavit was read into evidence.
The father relied on his affidavit filed 21 January 2014. He adduced evidence from his mother, Ms W, and his partner, Ms S. Both witnesses were cross examined.
The court also had the assistance of a comprehensive family report from Ms B. The report is dated 9 September 2013. The interviews for its preparation took place in early August. Ms B gave evidence and was cross examined.
The mother’s case
The mother’s case is that she remain the primary parent of X but that her parenting will be enhanced by her living in Queensland on the (omitted) where she has the ongoing actual and emotional support of her parents and her sister. She says that she has previously been diagnosed with post natal depression and continues to suffer anxiety. She says that she has no similar support mechanisms in Melbourne given that her previous good relationship with her mother in law, even post separation, having broken down due to some ‘awkwardness’ for the father and his mother. It is agreed that the father instigated, if not demanded, the cessation of the relationship between his mother and his estranged wife. The mother attributes at least a part of her anxiety to the nature of her relationship with the father both during and post their marriage.
The mother says that she can more easily pursue the completion of her (omitted) course from Queensland. She argues that her practical placements are more available and that she has the available support of her family to care for X.
She argues some financial advantages in the short and long term of a move to Queensland based on cheaper accommodation options.
The mother says that the relationship between X and the father is a strong and bonded one and that she will assist in maintaining that relationship from Queensland.
The father’s case
The crux of the father’s case is that he is acknowledged as having a good, attached, and close relationship with X which will be negatively impacted by a relocation for the child to Queensland given her young age and consequent less frequent time together. He alludes to the removal of opportunity for flexible and spontaneous time with X for instance at important school events. He expresses concerns as to the onerous and expensive travel regime proposed by the mother on both X and himself.
The father emphasises that the mother has not lived in Queensland permanently since her late teens and that the support mechanisms and their ultimate effect on her remain unknown. He says, in any event, that the mother can travel to Queensland with X regularly, as she has historically done and that her family can continue to travel regularly to Melbourne which together would attend to her support requirements. The father concedes that X live primarily with the mother in Melbourne but says that he is willing to provide support for the child’s care if and when the mother requires it.
The Relevant Law
The issues in this matter demonstrate the difficulties facing parents and Courts where a proposed relocation of a child is raised. These difficulties are compounded where the child is still very young.
The Court is mandated to make orders which are in children’s best interests but many of the usual relevant considerations in a parenting matter are amplified by reasons of distance and the obvious impact on relationships with the remaining parent and other important persons in a child’s life should a relocation take place together with questions of the primary parent’s capacity to parent successfully are also brought to the fore.
It is inevitable that whatever order a Court makes in allowing or refusing a relocation, one or other of the parents will be left understandably aggrieved. If the relocation is permitted then time and nature of contact between the child and the remaining parent will almost always become less regular or less frequent and/or take a different form and/or bring with it its own limitations and difficulties. If there is a relocation then the primary parent will often take on a greater role and presence in the child’s life than might otherwise be expected. There will be a sense of loss and often a feeling of bitterness in the remaining parent. These emotions may flow to members of the remaining parent’s extended family and create difficulties for communicative and cooperative parenting thereby testing the parents’ own relationships which may have been until then productive and respectful. Conversely, if the relocation is not allowed then the primary parent will usually be left unhappy and often bitter with thwarted ambitions. The blame will inevitably be placed on the other parent and again testing the preferred cooperative and respectful relationship between them. All of these emotions and reactions have the potential to impact on the child and his or her own relationships.
The jurisdiction of this Court in making parenting orders comes from Part VII of the Family Law Act 1975 (“The Act”). The task for the Court is to make orders which, on balance of the probative evidence and the proposals of the parties, is in the child’s best interests. The jurisdiction of the Court is effectively in respect of children and whilst the Court may permit or refuse the relocation of a child, it cannot usually per se make orders which prevent the freedom of movement of an adult. Nevertheless, in many instances, including that now before me, the primary parent wishing to relocate commits to remaining with the child should the relocation be refused.
The Act itself is silent as to the notion of relocation of children. In that sense, relocation is neither prohibited nor is there is a presumption against it. Rather, a proposal by one parent to relocate a child, be that intrastate, interstate or internationally, is just one of many considerations for the Court in arriving at orders which on balance are in the best interests of the child.
Importantly, whilst the prospect of relocation may be the major or even igniting issue in the proceedings, relocation is not to be treated separately to the overall determination of the child’s best interests. That is, there is no specific category of “relocation case” and a matter involving a proposed relocation fails to be determined like any other parenting case. The Full Court in Paskandy & Paskandy [1]noted:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.
[1] (1999) FLC 92-878
Section 60B of the Act sets out the objects and principles underlying those objects in respect of children’s matters. This provides the framework for determining the best interests of children. That section states:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive 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 children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right 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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC of the Act sets out the mandatory considerations that a Court is to reference in respect of the proposals of the parties and the evidence given and adduced. That section provides:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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 physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations 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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In determining parenting orders and responsibilities, the Court must follow a pathway of statutory and intellectual considerations confirmed by the Full Court in Goode & Goode[2]. The starting point is that there is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child[3]. Parental responsibility refers to all those duties, powers, responsibilities and authority which parents have in relation to children by way of law. Such responsibilities usually manifest in long term and important decisions for children in relation to issues such as education, religion, medical procedure and the like as opposed to day-to-day decisions.
[2] (2006) FLC 93-286
[3] S 61DA
The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence within the broad definition in the Act[4]. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that it would not be in the child’s best interest for the parents to exercise that responsibility.[5]
[4] S61DA(2)
[5] S61 DA(3)
In the matter now before me, both parties seek an order for equal shared parental responsibility based on what they say to have been a previous generally cooperative and successful co-parenting arrangement. The mother does, however, as part of her overall argument, raise historical instances of alleged domestic violence. These allegations were not explored thoroughly and indeed her Counsel in opening submissions stated candidly that they did not form an important part of her case. She also raises an allegation that she was subject to, or alternatively, felt “controlled” by the father and that this situation would be exacerbated in her remaining in Melbourne and, conversely, alleviated by her moving to Queensland. The mother’s evidence in respect of these two issues was somewhat equivocal. In her affidavit material she is complementary of the father and references their ability to cooperate together in parenting their daughter. Whilst detailing the issues of family violence and control. Further, the mother elected to adduce evidence from her current counsellor being a social worker, Ms K. Ms K’s evidence highlighted the mother’s reports of family violence and “control” and these reports albeit forensically untested and often corroborated by Ms K, quite obviously ground her many opinions and recommendations some of which may extend outside the realm of her claimed expertise.
If the presumption of equal shared parental responsibility does apply and is not rebutted, then the Court is obliged to consider two discrete parenting options or regimes. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable?[6] If the answer to either of these questions is in the negative, then the Court must move to consider whether the child spending “substantial and significant time” with each of the parents is both in the child’s best interests and reasonably practicable.
[6] MRR & GR (2010) 240 CLR 461
“Substantial and significant time”, is defined in the Act[7] as:
[7] S65DAA(3)
a)The time the child spends with the parent includes both:
i)Days that fall on weekends and holidays; and
ii)Days that do not fall on weekends and holidays; and
b)The time that the child spends with the parent that allows the parent to be involved in:
i)The child’s daily routine;
ii)Occasions and events that are of particular significance to the child;
iii)The time the child spends with the parents allows the parent be involved in occasions that are of special significance to the parent.
The father in the matter now before me does not seek equal time with X even if both parents live in the same locality. He does, however, seek substantial and significant time within the definition above. Obviously, the mother’s proposal by reason of geography and distance does not fit the definition of either equal or substantial and significant time.
A long line of judicial authority has provided assistance for trial judges in extracting principles to be referenced in parenting matters involving a potential relocation. Significant amendments to the Act in 2006 enlivened judicial and academic debate in respect of matters involving a proposed relocation of a child. It seems, however, the authorities agree that the relevant principles remain valid[8] and can be summarised as follows:
·Relocation matters are parenting cases to be determined in terms of Part VII of the Act and in the context of making necessary findings in respect of the relevant s.60CC factors but also within the context of the s.65DAA considerations of equal time or substantial and significant time and “reasonably practicable”;
·The best interests of the child remain the paramount but not the sole consideration;
·The child’s best interests must be weighed and balanced with the “right” of the parent to “freedom of movement” but such must ultimately defer to the child’s best interests; and
·Neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally including the advantages and disadvantages of a relocation or, may itself formulate proposals in the best interests of the child.
·A parent wishing to relocate a child need not provide compelling reasons in support of the relocation.
[8] See Taylor & Barker (2007) FLC 93-345; McCall & Clark (2009) FLC 93-405; Sealy & Archer [2008] CAFC 142
The Family Report
The author, Ms B, is an experienced family reporter who often gives evidence before these Courts as a Regulation 7 family consultant. She has qualifications as a psychologist.
Ms B in her report and confirmed in her evidence in court, recommends against the relocation of X to Queensland.
My reading of Ms B’s report and my observations of her evidence in the witness box were of an informed, experienced expert. She was willing to make appropriate concessions as, for instance, of relevant omissions in her report. She was able to reconsider her conclusions and recommendations when confronted in cross examination with new or conflicting evidence. Whilst remaining certain in her recommendation, Ms B was able to acknowledge a number of positives in the mother’s case not apparent in her report.
Ms B bases her recommendation on her view of an attached and established relationship between father and daughter and that this relationship would be challenged and impacted by a move to Queensland. She spoke of X potentially suffering “a sense of loss”. She observed a preferred “window” for a relocation and suggested that X being “8 or 9 years old” would be a more appropriate age.
Ms B acknowledged, however, that the mother’s proposal first put in Court of regular fortnightly time for X with the father, might assist in maintaining their relationship. The mother’s proposal at the time of the report interviews had been for less frequent visits for X to Melbourne. She noted, however, X’s age and the potential onerous travel and difficulties in maintaining these arrangements over time. She noted the need for X to reassess and adjust to the change in the nature of her relationships with each of her parents if a relocation was to occur.
Ms B observed the mother as being resilient whilst noting her history of anxiety and depression. In this sense she was very much at odds with the opinions and observations of the mother’s counsellor, Ms K. Ms B was able, however, to concede as follows:
The mother will manage better in Queensland than she does in Melbourne, when she has actual and emotional support from her family but would manage in Melbourne by utilising her resilience. But this must be weighed against the loss for the child and the question of practicability of travel arrangements for the child.
Ms B acknowledged that there would be positives for X in making a move at this time rather than at say 8 or 9 years when she will have established bonds and friendships at school and socially which might themselves argue against a relocation. In cross examination, she responded “this might be the most appropriate time” whilst still stressing her concerns as to the maturity of the child and the need for continuing strengthening of her relationship with her father.
Ms B’s reservations as to the ability of X to adjust her own understanding of her relationships on a move to Queensland is set out at various paragraphs of her report including:
131. The one area of concern about Ms Reiner’s attitude is her apparent belief that X’s emotional response to separation from her father will be lessened by a supportive maternal extended family. It is unlikely to be the case, given X’s strong attachment to Mr Bedford and his very competent parenting. Mr Bedford is perceived by X as a primary parent figure and any rupturing of this emotional attachment is unlikely to be repaired fully no matter how caring and supporting extended family might be.
142. Given X’s age – in the high-risk group of under six year olds – she may have problems settling into school, as well as making new friends, despite Ms Reiner’s views to the contrary. The stress of change and transition in moving away from her familiar community, known since birth, commencing primary school as well as extended separation from Mr Bedford, may be significant emotional overload for her.
143. X might demonstrate some emotional regression and behaviour appropriate for younger aged children. She might also experience the expectations on her of Ms Reiner and her extended family to demonstrate that relocation was appropriate, despite the possibility of considerable distress at separation from Mr Bedford.
145. the most significant risk to a successful outcome for X would be the potential loss of the psychological and social involvement of Mr Bedford in her life. Mr Bedford has provided stimulation and nurturing and the ongoing extended family environment will only become more nurturing for X as she matures and time passes.
In summary, Ms B bases her recommendations on possible adjustment difficulties for X of a relocation; possible negative impact on the relationship between X and her father, her views as to the mother’s resilience and in this respect she stated that she thought the mother to have “overstated her distress”, and her scepticism as to the long term durability of the mother’s ‘time with’ proposals.
The Witnesses
The Applicant Mother
I found the mother to be an honest, candid and objective witness. My observations are somewhat at odds with those of Ms B, who opined that Ms Reiner tended to “overstate her level of distress” within the context of the possibility of being required to remain living in Melbourne. My observations do, however, accord with those of Ms B in respect of the mother being mature and resilient of character. In this sense, I contrast the evidence of the mother with that of her own witness and counsellor, Ms K, who portrayed the mother as a vulnerable and anxious personality who would inevitably suffer in herself and in her parenting should she not be permitted her preference to relocate to Queensland. Whereas Ms K was keen to emphasise any issues coming within the broad definition of “family violence”, the mother herself (and through her instructions to counsel) chose a more realistic and objective approach to this issue. She did not retreat from her affidavit evidence in cross-examination but she did not rest her case on these issues, whilst still leaving factors such as her personal confidence and feelings of being “controlled” for consideration by the Court.
After hearing the mother in cross-examination, I am satisfied that her reasons for applying to relocate with X to the (omitted) are bona fide. I am satisfied on all of the evidence and after seeing the mother in court that she would continue to facilitate and encourage X’s relationship with the father if the relocation is permitted. She demonstrates an ability to cooperate and communicate with the father in matters concerning X despite her own difficulties and best evidenced by the arrangements for both parents and extended families to participate in X’s introduction to school over the past few weeks.
Ms D
Ms D was not required for cross-examination. She is a psychologist and counselled the mother between February 2009 and August 2010 over 17 sessions. Ms D’s report is dated 5 August 2013 and she clearly understands it to be provided in anticipation of the mother’s application to relocate with X to Queensland.
Ms D counselled the mother in relation to postnatal depression and relationship issues. The mother reported “coping difficulties” from as long ago as November 2008. Ms D notes in her report at paragraph 5.1.1:
Ms Reiner reported coping difficulties since November 2008. She reported feeling angry, hopeless, and low in relation to “ongoing conflict” in her marital relationship with Mr Bedford. Her self-esteem was low and she found it difficult to express herself clearly in her relationships.
And at paragraph 5.1.5:
Ms Reiner reported having her daughter 6 months earlier had “inspired the need for change”. She described loving and enjoying motherhood however had become increasingly concerned about the conflict in her relationship due to her daughter’s presence. According to Ms Reiner, both Mr Bedford and she wanted to end the “cycle of abuse” in their marriage.
Ms Reiner presented as insightful about the reasons for her low mood, willing to acknowledge her contribution to the relationship conflict, communicative about her concerns and wanting to improve the interactions and communication with her husband, therefore the prognosis for achieving her treatment goals was favourable.
Ms D notes seeing the mother again in March 2010 at around the time of separation and her report at paragraph 9.1.1 and notes the following:
Ms Reiner presented again in March 2010 and due to a “big fight” eight days earlier she and Mr Bedford had separated under the one roof.
The main treatment goal was to: (1) facilitate adjustment post-marital break-up, including understanding her past marriage, coming to terms with her feelings, finding a way to express them safely and find positive ways of continuing life as a single mother.
Ms Reiner presented as struggling to come to terms with the reality of her marital issues. She felt angry and resentful about the past treatments she had received, her self-esteem was also impacted and she was dreading the feeling of loss and the finality of being on her own.
At termination Ms Reiner had moved into her own unit and was ready to consolidate her gains and focus further on her individual plans for the future. She had been able to express feelings of loss, let go of the focus on the past, her coping had improved and her symptoms had lessened.
Ms D notes that the mother did not raise the possibility of a relocation to Queensland with her in the sessions which concluded in August 2010.
Ms D’s observations are not challenged by cross-examination and I therefore give them due weight.
Ms K
Ms K is the mother’s more recent counsellor. She holds social work qualifications. Ms K’s affidavit was sworn 6 January 2014 and references eight sessions with the mother from May 2013. Ms K’s report of 2 January 2014 is clearly based on her understanding of the mother’s desire to relocate with X to Queensland. Her opinions are summed up in the fourth and final paragraph of her report as follows:
Finally, and importantly, an ongoing thread throughout our counselling sessions has been Ms Reiner’s very great longing to bring up her daughter X [sic] in an environment where both herself and X are connected to her extended family network and supports; a situation which will not only relieve the sense of isolation that Ms Reiner feels in Melbourne but will also offer an environment of family and community belonging that she feels is so important in raising her child.
Ms K was cross-examined. Her evidence in Court, like that in her affidavit, emphasised issues of family violence and Ms K’s understanding of its effect on the mother. She conceded in the witness box that her counselling and her report/evidence is “postmodernist” in the sense that she did not forensically test or challenge the instructions given by the mother. Ms K, in my view, had a tendency in her report and in her evidence in court to use emotive language for reasons of emphasis. Terms such as “barrage of intimidation” attributed to Ms Reiner are at odds with the mother’s own affidavit evidence and my observations of her in the witness box. They are also contrary to the observations and opinions of the family report.
I consider Ms K to be (perhaps understandably) professionally partisan to her client. She was “professionally jealous” in the witness box and unable or unwilling to concede or acknowledge evidence or propositions which may conflict or argue against her own conclusions. She was prone to wander outside her field of expertise at times in proffering her “diagnosis”. Nevertheless, her reporting is factually consistent generally with the mother’s own evidence and also provides a “chain” from Ms D in respect of the mother’s emotional health and relationship difficulties with the father.
Ms A, Ms E, and Mr A
The mother adduced evidence from her sister and her parents. They were understandably supportive witnesses. They gave their evidence in an open and honest fashion. Essentially, each confirmed that they were willing and available to assist and support the mother should she relocate with X to Queensland. It is clear that such support would also be forthcoming within a different context should the mother remain in Melbourne. I gleaned no animosity from these family members towards the father.
The Father – Mr Bedford
I observed Mr Bedford to also be generally a candid witness albeit one anxious to rectify the perceived weaknesses in his case. He put his position fairly and objectively and in particular, in respect of his own circumstances which he sees as precluding him from assuming a more primary role in X’s care and/or moving himself to Queensland. He was able and willing to make appropriate concessions when challenged in the witness box. I saw his argument in respect of X remaining in Victoria as being child-focused, informed and considered.
The father disputed the allegations of family violence and especially in the particulars and emphasis put by Ms K. He conceded difficulties in the marriage and conceded “pushing back” the mother on an occasion in “self defence”. Importantly, however, I am satisfied that he, like the mother, has been able to put these issues behind him and is able to communicate and cooperate effectively in matters concerning their daughter. Such traits of cooperative parenting are usually incompatible with current on continuing issues of family violence.
Similarly, I am satisfied that the matters alleged to be “controlling behaviour” by him towards the mother were factors of marriage difficulties and of the separation rather than having the more sinister ingrained tones as suggested by Ms K. I accept it to be a misjudgement, albeit a serious one by the father in asking his own mother to sever her friendly relations with Ms Reiner following separation. Similarly, his comments in respect of the mother’s use of child-carers when he himself was not readily available are a result of a lack of judgment and particular insight. I accept his evidence that he now acknowledges that his behaviour was misguided and regrets it. Whether he understands however, the impact of that behaviour on the mother given her own emotional or psychological demeanour, remains to be considered.
Ms W and Ms S
Ms W is the paternal grandmother. Ms S is the father’s current partner. Both gave evidence supportive of the father’s case. I am satisfied that both are important and appropriate adult figures in X’s life. I place no blame on the grandmother in severing the relationship with Ms Reiner following the parents’ separation. She is, of course, sympathetic to her own son’s position. Given the flux of time and the current relationship between the parties, it may be that that friendly and regular relationship might be resumed, a prospect which of course, would ultimately be to X’s benefit.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefits to the child of having a meaningful relationship with both of her parents.
Each parent acknowledges that X is fortunate to have developed a bonded, loving and successful relationship with each of her mother and father. Ms B makes similar observations.
The father’s case is grounded to a large extent on his fears that his relationship with X would be negatively impacted by her relocation to Queensland. Ms B raises similar concerns. In this sense, it is now well-established that the Court has two courses of consideration in making orders which benefit children in their meaningful relationships with their parents. Firstly, the process for the Court is a prospective one in that it is to consider the relationship into the future. Obviously, in doing so, the Court must consider the current nature of the relationships for the child. It might be considered that a child would more successfully endure and adapt to a relocation away from a parent if the relationship with that remaining parent is already established, strong and bonded. Conversely, a relationship still in the throes of being established or a relationship enduring difficulties might argue against a relocation. Issues of the child’s age are also relevant in that a child of young age, even with an established successful relationship, might have difficulties in maintaining that relationship if there is a relocation in that the frequency of direct contact is lessened. Such considerations might be of much lesser importance for older and teenage children.
Secondly, it is very much the quality of the relationship which concerns the Court, rather than simply considerations of quantity of time. An older child might maintain a quality relationship with the assistance of media such as Skype or email. These tools would be of lesser assistance in a relationship between a younger child and the remaining parent. The father asks me to infer that the ‘quality’ of his relationship with X might diminish if he is unable to easily attend school and extra-curricular activities.
In any event, and whilst this is a “primary” consideration, it remains only one among many for the Court to balance in arriving at orders which are both in X’s best interests and are reasonably practicable. As the Full Court stated in Champness & Hanson[9]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
Section 60CC(2)(b) – the need to protect the child from physical harm, from being subjected to, or exposed to, abuse, neglect or family violence.
[9] [2009] FAM CAFC 96 at 103
Family violence in its broad terms is raised by the mother as an issue. She does not, however, put it with any priority in her application. She does maintain that her comfort and function as a parent are impacted by what she sees as a history of controlling behaviour from the husband. She refers to specific events of physical violence. The father on oath disputes the allegations in their particulars. The lack of intrusiveness cross-examination on the issue leaves me unable to make any positive findings on this dispute.
The mother alludes to the following:
i)That following separation, she maintained a close, regular and friendly relationship with the maternal grandmother. The father insisted on this relationship ceasing. Whilst I now accept that he did so by reason of poor judgment and lack of insight at the time of the emotional tension at separation, it is the effect on the mother that is important. It is understandable that she would perceive this as controlling behaviour. It did, of course, serve to sever one of her continuing and major support networks in Melbourne. I do not see either the mother or the grandmother as culpable in this regard but accept that they were both subject to what was indeed the father’s controlling behaviour. This instance is consistent generally with the mother’s reporting to both Ms D and Ms K and therefore lends some corroboration to their evidence;
ii)The mother has been pursuing her (omitted) studies. There have been times when she has required assistance in the care of X and on short notice. I accept that the father had indicated that he might not always be immediately available and without reasonable notice due to his employment commitments. Nevertheless, for him then to criticise or question the fact of the mother using child carers and the identity of those carers, in my view, shows a demonstrative lack of insight in the father and might easily cause the mother to feel the object of control. Whilst such actions might be naïve and without mala fides, it is the feeling created in the mother and the impact, even if subtle, on her parenting which is of importance here.
In his affidavit material and in court, the father paints a positive picture of himself as a supportive non-primary parent. However, I accept that the mother might not see this as being so given the instances above. The psychological and counselling reports available to me suggest that the mother has a history of some depression and anxiety in dealing with relationship difficulties. It is logical to conclude that such behaviour by the father might compound these feelings of being subjected to control. In this sense, control need not be overt or aggressive. It is often in its more subtle and subliminal forms that its effect is most profound and it is that effect that is of real importance in considerations of this type.
Additional Considerations
X is just five years old. She is not of an age where she could rationalise her preferred parenting arrangements.
The family report notes the mother observing that X may have some reluctance to go to her father on Tuesday evenings. This matter was not pursued in the evidence. Within the general context of the evidence and the child’s relationships, I place no weight on it.
The nature of the relationship for X is defined by the previous arrangements agreed by her parents. The mother is the unchallenged primary parent. The father’s time has been mostly rigid in taking place on alternate weekends and Tuesdays overnight. Whilst X is unarguably bonded to each parent, her attachments reflect these arrangements. Fortunately for her, X has also developed close and loving relationships with various members of her extended families.
Whilst, each parent has discharged their responsibilities as a parent adequately, the more onerous role has been taken on (gratefully) by the mother.
The mother’s proposal would inevitably bring changes for X. Her current easy transitions between her parents would be complicated by travel arrangements and timetables. The travel itself is a factor noted by Ms B as a concern. The possibility of flexible or spontaneous time with her father would be lost. The evidence though suggests the father having a preference for strict and rigid timetables for his time with X and he has on occasions not been forthcoming with flexibility when the mother has required his assistance. Further, the mother’s proposal on its face would allow the continuation of fortnightly time although, of course not the Tuesdays (or the previous arrangement of Thursdays, which was discontinued at the father’s initiative).
The mother’s proposal would involve X starting at a new school although it is unlikely that she has yet had the opportunity to develop any established relationships at her current school.
The father’s own insistence has caused X’s relationship with the paternal grandmother to be limited to when she is with the father and this could continue on the mother’s proposal.
The father and Ms B express concerns as to the practical difficulty and expense of the mother’s proposal. I note X’s young age. There are however direct and regular flights between (omitted) and Melbourne and I am not satisfied on the evidence that the costs are prohibited given the parties’ circumstances.
The father has demonstrated an ability to provide for X’s physical needs within his limited role as a “time-with” parent. He can improve in this respect by being more accommodating and understanding of the primary parent’s needs. The mother acknowledges Mr Bedford as a good father who can and does contribute to his daughter’s emotional and intellectual needs.
The force of the mother’s argument to relocate with X to Queensland is in respect of her own capacity. She has suffered some depressive illness and anxiety apparently associated with or exacerbated by relationship difficulties with Mr Bedford. She has undertaken counselling over a number of years and not just contemporaneously with this application to relocate to Queensland. Ms B acknowledges the mother’s difficulties and says that she will “manage better in Queensland”. Ms B’s position remains, however, that the mother is resilient and would “cope” if she was obliged to remain in Melbourne.
The mother associates her anxiety and depression difficulties with a feeling of being controlled by the father’s behaviour. On considering the evidence as a whole, and including the evidence of the various experts, I am satisfied that it is reasonable for this mother to subjectively feel that way. I note, however, Ms B’s bland and unsubstantiated observation that the mother tended to “overstate” her anxiety. I also note that Ms B provided a family report within its normal brief rather than a psychological assessment of the mother. Significantly, however, Ms D also noted the mother’s improvement and likely further improvement from her earlier counselling sessions. Nevertheless, despite the optimism of these professionals, the mother felt it necessary to enlist more assistance as long ago as May 2013. Ms K is more forthright in her opinions and unequivocally observes the mother as being anxious, fearful and distressed. She equally unequivocally relates the mother’s condition to the relationship with and proximity of the father and then urges a relocation for the mother with the obvious implication that it would impact positively on her parenting capacity.
The mother herself says simply that she craves the support of her family in Queensland. When challenged, she maintained that visits by them to Melbourne would not substitute their constant availability, proximity, actual and emotional support. I did not see the mother in the witness box as embellishing or exaggerating her mental health history. Indeed, she struck me both in her demeanour and in her responses, as an intelligent, articulate and mature young mother easily able to acknowledge the strengths of the father’s case. Equally, however, she was able to articulate in the witness box the concerns that she maintains in respect of her own parenting and her desire to be the best possible primary parent for X. I emphasise that I found no evidence or indication of mala fides in the mother’s application to relocate. Whilst the parties disagree on when the mother first raised such an issue, it seems clear that it has been on her mind consistently for some time following separation.
From the evidence of the mother and herself and her family members, I am satisfied that there exists a mutually close and supportive relationship. Whilst the mother has not lived permanently in Queensland since she was a late teenager, it is obvious to me that those support networks and bonds have remained. The mother’s sadness and her comments as to the demise of her relationship with her mother in law, Ms W, were enlightening to witness and provided an insight into the personality, needs and vulnerabilities of this mother. It was demonstrative of both her need for close support networks and of her willingness to maintain X’s relationship with the father’s extended family.
Issues as to the child’s age and level of cognitive maturity have been dealt with above.
The father does not criticise the mother’s parenting. Indeed, he concedes and acknowledges her role as primary parent. He has been criticised to a degree in his attitude and, more particularly, his lack of insight in respect of his own behaviour on the mother’s anxiety and her parenting. Whereas the mother has given every indication that she would pursue greater involvement for the father in X’s life and a cooperative parenting arrangement, he has shown a tendency towards a more rigid and authoritarian stance. He has been ready to criticise the mother’s choice of carer but not so ready to step up to the plate himself when needed. He may not yet understand the mother’s need for support, both actual and emotional and for her to pursue her (omitted) studies to their conclusion which in turn may add to her own confidence and self-esteem. He was dismissive of allegations of controlling behaviour but more significantly in my view, he was perhaps lacking in the understanding of the effect on the mother of his behaviour. The incidents referred to above may in isolation appear to be insignificant and contrary to general impressions of a father who is devoted to and involved with his daughter. However, such an impact on a primary parent, even with such subtle connotations, should not easily be dismissed. Whilst he impressed me as a strong and assertive character and the mother also showed signs of resilience, her evidence and demeanour in the witness box also showed a vulnerable and dependant side which was picked up prima facie by each of Ms D, Ms K and Ms B.
Issues of family violence have been dealt with above.
I must consider making orders which would be least likely to lead to the institution of further proceedings in respect of X. It is the nature of the parenting orders that they are prospective. It follows that the results might be anticipated but cannot be predicted with certainty. These unknowns are amplified in matters involving relocation. If the relocation is ordered then X’s ability to adapt is unknown. Ms B emphasises and seems to rely on these “possibilities”. The mother argues that her happiness and support will be enhanced by a move to the (omitted). She has not lived there since she was 18 years old. Consequently, her ability to settle remains unknown. Similarly, however, the mother argues if she is required to stay in Melbourne then her anxieties may react on her parenting capacity. This is an unknown. Ms D notes the possibility of improvement in her mental health. The later involvement of Ms K is more pessimistic. The father argues that the mechanics of the mother’s travel proposal will be onerous. This is an unknown. Ms B raises that X might suffer a “sense of loss” if she moves to (omitted). There is equally an argument that her current solid relationship with her father will assist her to endure and adapt to such a change. Yet this also remains unknown. Nevertheless, changes of circumstances for children and parents are inevitable whether those parents be separated or not. It is the task for these courts to make orders which are in the best interests of children and workable into the future. It has never been the aim of the courts to make optimum or ideal orders without regard to practical considerations. As such, further proceedings in relation to X are always a possibility given the variables listed above. It is for the parents however, to grasp the orders whatever they may be in respect of their daughter, whether they be agreed or not and to move forward in a cooperative manner and in their child’s best interest. Further litigation will inevitably provide further upset and uncertainty for X.
Discussion, Findings and Conclusions
The task for the Court is one of weighing and balancing the evidence and the parent’s proposals with reference to the various considerations in section 60CC of the Act and to make a determination, on the balance of probabilities, which is, in all of those circumstances, in X’s best interests and one that is reasonably practicable. Optimum or perfect results are rarely obtained in this place. Matters such as the one now before me and where there are fundamentally two typically good parents confronted with an issue such as a proposed relocation are inevitably complex and difficult in their determination in that each proposal brings obvious advantages and disadvantages for X and the important people in her life. Determinations are regularly finely balanced. Such is the case here.
The father’s proposal brings with it many advantages for X which obviously and conversely are disadvantages for the mother’s case. They include:
a)that X is settled in Melbourne, apparently happy, and has recently started at her primary school;
b)that the mother has lived in Melbourne for the last 15 or so years and on the face of it appears to have parented X successfully both prior to and post separation and without the adjacent support of her parents and family;
c)The mother has completed one half of her (omitted) course in Melbourne, and it is open for her to complete it here;
d)The mother’s parents have shown a capacity to travel to Melbourne regularly to provide her with actual support and the Court is able to provide orders that allow the mother be able to travel frequently to Queensland with X which may address her claimed need for family support;
e)The mother’s proposal will change the nature of the relationship for X with her father. It will introduce the need to travel. It will reduce their time together which currently involves Tuesdays overnights and hence, at the very least, create longer gaps in face-to-face contact between X and her father;
f)The mother’s proposal effectively removes the opportunity for spontaneous or flexible time between X and her father;
g)The mother’s proposal effectively removes the capacity for the father’s involvement in X’s school and extracurricular activities;
h)The mother’s proposal, whilst relatively generous, will still incur expense for the father in travelling regularly to Queensland;
i)The mother’s proposal will incur expense for her in paying for X’s monthly travel to Melbourne and within a context of the mother not yet being in the workforce.
j)X is, on the evidence, comfortable in her relatively easy transitions between her parents.
The mother’s proposal also brings with it a number of advantages:
a)The mother is the unchallenged primary parent of X and it is a given that it is in X’s best interests that her mother be healthy, happy and comfortable in her own personal life as well as in her parenting of X;
b)I am able to find that the mother is bona fide in her application and hence it follows, that I also am satisfied that she will encourage and facilitate X’s relationship with the father ;
c)The mother’s proposal does not bring dramatic change to X’s time with the father which has consistently followed a regime of each second weekend and a Tuesday overnight. In this context it may be possible to “compensate” any loss of time by longer school holiday time;
d)The evidence is that the travel arrangements between Queensland and Victoria are not prohibitive of the mother’s proposal and similarly, the evidence as to the expense of travel is equally not prohibitive;
e)The mother’s main support network on the evidence, is her family in Queensland. The father himself, at least in part, has severed one important support for the mother, being her mother-in-law. Despite his statements in Court, he has historically only been available in accordance with the agreement between the parties.
f)The mother’s career opportunities are as available to her in Queensland as in Melbourne and arguably more so in respect of the practical opportunities for the completion of her course with the practical assistance from her family.
The focus and emphasis of the mother’s case is on her psychological/emotional state and consequent need for actual and available family support in her role as a mother. In this regard I consider the evidence of both the parents themselves together with the experts, Ms D, Ms K and the family reporter, Ms B.
I have set out my observations of the mother in detail above. She variously showed me indications of both resilience and vulnerability. Ms B considered the mother to have “overstated” her anxieties. This part of her evidence, however, is unsubstantiated in both the report and in Ms B’s evidence in Court. It was not pursued in cross-examination. Ms B’s observations do not sit well with my own of the mother, the report of Ms D and more significantly, the report of Ms K. Ms B’s meeting with the mother was relatively short and forensically focused on the numerous issues before the Court. Ms D is clear in her report as to the mother’s prior emotional state and the apparent triggers or causes. She does not suggest the mother to be a malingerer or that she overstated her symptoms. It remains simply her unsubstantiated opinion. It is not the result of any psychological testing procedure. It does not come after a course of therapeutic treatment. Whilst Ms K’s evidence caused me some difficulties in its assertiveness and tendency to move outside her fields of expertise, she has had the real benefit of a recent and ongoing therapeutic relationship with the mother. She also relates the mother’s emotional conditions essentially to the same extraneous factors as noted by Ms D. In addition, I am satisfied that the mother, at least subjectively and given her own particular demeanour, reasonably feels to be the object of the father’s controlling behaviour. I have referred to particular examples above. Consequently, and on the balance of probabilities, I am satisfied that the mother suffers the conditions set out in Ms K’s report and specifically in respect of the references to anxiety. Despite Ms K’s tendency, in both her report and her evidence in Court, towards hyperbole and grandiloquence, her observations of Ms Reiner for a lengthy period from May 2013 bear reference and I give them some real weight. In the third paragraph of her report, Ms K observes and opines:
The current context of both the increased level of contact between Ms Reiner and her ex-partner, Mr Bedford, and the “threat” of being once again “under his control” has acted as a heightened trigger for her current anxiety. This is also the context in which they co-parent, and Ms Reiner has disclosed in recent counselling sessions the “never-ending fight” of co-parenting with an ex-partner who she describes as controlling and where her powerlessness within the relationship feels constantly triggered by Mr Bedford’s behaviours. This dynamic with its attendant ongoing anxiety continues to have a debilitating effect on Ms Reiner’s mental health and vicariously on their daughter, X (X), and this will continue whilst she resides in Melbourne. Relocation, where the geographical distance creates potential to diffuse Mr Bedford’s need for control with its adverse consequences for Ms Reiner, will over time alleviate such anxiety.
In our session of 21 August 2013, Ms Reiner and I discussed her fears of continuing to co-parent in Melbourne should the Family Court Relocation Application not be favourable to her. She described the intensity of once again feeling so “powerless” and “victimised”, and the great disappointment she felt at the prospect of being under Mr Bedford’s ongoing control. Ms Reiner is once again finding she is experiencing anxiety behaviours which first surfaced when the abuse in the relationship initially occurred…Ms Reiner describes a dynamic where initiating and invoking boundaries on behalf of her child can precipitate a reactive “barrage of intimidation” from Mr Bedford leaving her anxious and fearful, and impacting adversely on both her mental health and her parenting.
It is not insignificant that Mr Bedford himself acknowledges the mother’s anxiety and/or unhappiness. At paragraph 42(i) of his trial affidavit Mr Bedford volunteers:
While I understand that Ms Reiner may experience some emotional difficulties for a short period of time if X is not allowed to Queensland, I believe that this can be managed with counselling. Ms Reiner has had some exposure to mental health problems in the past. At those times, she has sought counselling from a trained psychologist to help manage her mental health issues, which I regard as a credit to her.
And at paragraph 64 of that affidavit:
If this Honourable Court makes an Order restraining Ms Reiner from relocating to Queensland with X, I understand that Ms Reiner may struggle for a period of time to come to terms with that decision.
The difficulty with the above concessions is that, like the Court, Mr Bedford is perhaps not qualified to say with any certainty as to how the mother would deal with her unhappiness. I infer, however, that he concedes her general demeanour and history of emotional difficulties.
Similarly, Ms B appears to concede the mother’s demeanour when she said in cross-examination:
…the mother will manage better in Queensland where she has actual emotional support but will manage in Melbourne by utilising her resilience…
I am satisfied, therefore, that the mother is honest and does not exaggerate her anxieties. I am satisfied that they relate, at least in part, to the nature of her relationship with the father. I am satisfied that she is honest in and does not exaggerate her need for support from her family, for herself and in her primary parenting role. Any observations by the father and Ms B of the mother “coping” are in my view indicative of her nature and understanding of X’s need for a relationship with Mr Bedford rather than to be viewed as diminishing her emotional conditions clearly noted by both Ms D and Ms K.
The father, supported by Ms B, argues that his relationship with X would be negatively impacted by the mother’s proposal to relocate to the (omitted). Ms B fears that X will suffer a “sense of loss”. She focuses on X’s age. X, however, is five years of age. All parties and Ms B agree that X has a strong, confident and bonded relationship with her father. This has been achieved since the party’s separation in March 2010 when X was just 19 months old. That this has occurred is obviously a credit to both parents. I am also satisfied that the relationship has been established and maintained within the realm of a fairly rigid adherence to a regime of time each second weekend and overnights on Tuesdays. In addition, X herself is in a process of socialisation. She has commenced school. She is developing broader relationships with various children and adults. Ms B was equivocal in her evidence in Court and whilst maintaining her conclusions, was open to suggestions by counsel for the mother that a child of X’s age and current circumstances would adapt more easily and readily to a relocation than would a pre-school aged child. Ms B agreed that there are factors weighing in favour for a relocation for X now rather than, say, when she was eight or nine years old (which was canvassed in evidence) and when she will have created other bonds and relationships which would argue against the recollection. Ms B went so far in cross-examination to speculate that should there be a relocation then “this might be the most appropriate time”.
Ms B was also concerned about the practicality of the proposed travel arrangements should there be a relocation and their durability into the future. In this sense and on a close reading of Ms B’s report, I find some merit in counsel for the mother’s challenge to Ms B that her report focuses with the emphasis on the anticipated negatives of the mother’s proposal with relatively little reference to the positives.
It is a fact of 21st Century Australia that there is a high degree of relationship breakdown. It follows that there are many children negotiating their relationships with both parents. We live in a time of relative ease of transport and communication. The notion of “freedom of movement” of a primary carer must always defer to the best interests of the child but is also to be addressed within these contemporary circumstances.
The evidence before me is that X has an established, meaningful and mutually successful relationship with her father. It has been established and maintained since she was an infant. It is done so by a fairly strict adherence to fortnightly, weekend and one night per week time between X and the father. X is described as happy and settled in her demeanour and in her relationships. The mother’s proposal is not so removed from the current arrangement that it need fundamentally change the nature of the relationship between X and her father. X is at an age where she can utilise the various media available, such as Skype which, of course, cannot be a substitute for direct contact but does serve to mitigate from some of the generic concerns expressed by Ms B.
I am satisfied that the mechanics and expense of the mother’s proposal are not prohibitive of maintaining her relationship with her father. I am confident that both the mother will assist in X’s relationship with her father and that Mr Bedford would keenly take up all available opportunities to spend time with and communicate with his daughter and negotiate any of the inconveniences caused by a relocation of X to Queensland.
Taking all of these considerations and the evidence into account, I am satisfied that both the mother’s and the father’s proposals for X are reasonably practicable. On balance, I place significant weight on the emotional health of the mother as primary parent of X and am satisfied that she has a real need for a close family support network in her parenting of the child.
I am satisfied, therefore, that X’s best interests are served by her continuing to live primarily with her mother and that they be permitted to relocate to live on the (omitted).
I generally accept the mother’s proposal for time between X and the father to be in X’s best interests. I agree in the circumstances that the mother be responsible for X’s travel costs to Melbourne. If there are to be any additional trips to Melbourne at the father’s request, then he should meet the costs as he should for any times he travels to Queensland. I am mindful of the long-term onus on the mother of her offer to vacate her home in favour of the father if he visits Queensland. I wonder what might be the situation if she re-partners? However it is her proposal and one made whilst she was represented and as such I make an order accordingly.
I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 7 March 2014
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