Richards and Howard
[2008] FMCAfam 458
•9 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHARDS & HOWARD | [2008] FMCAfam 458 |
| FAMILY LAW – Parenting – relocation – interstate – urgent interim application by grandparents. |
| Family Law Act 1975, Part VII, ss.60B (1), (2), 60CA, 60CC, 60CC (2)(a), (3), (3)(a), (b), (b)(ii), (d), (e), 61D, 61DA (3), 65DAA, 65DAA (5) |
| A v A: Relocation Approach (2000) FLC¶ 93-035 AMS v AIF (1999) 199 CLR 160 Bolitho and Cohen (2005) FLC¶ 93-224 B v B [2006] FamCA 1207 P and P (2005) FLC¶ 93-239 Sampson v Hartnett (No 10) (2007) FLC ¶93-350 Boland, J. A Review of the Case Law 2007 – 2008: An Update, 2008 Family Law Intensive, Sydney. |
| Applicants: | MR RICHARDS & MS RICHARDS |
| Respondent: | MS HOWARD |
| File number: | CAC 404 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 30 April 2008 |
| Date of last submission: | 30 April 2008 |
| Delivered at: | Canberra |
| Delivered on: | 9 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szczepanek as agent |
| Solicitors for the Applicant: | Gordon Garling Moffitt |
| Counsel for the Respondent: | Ms Pitts |
| Solicitors for the Respondent: | McCabe Partners Lawyers |
ORDERS
The children, D born in 2001 and K born in 2003 relocate to [G], Queensland and live with the applicants.
The applicants, mother and father have equal shared parental responsibility for the children.
The children spend time and communicate with their mother as follows:-
(a)For the entire school holiday period in both the Term 2 and 3 holidays in 2008, with location and times to be agreed between the parties.
(b)For a period of 3 weeks during the Christmas/January school holidays with the commencement to be the day after the last date of the school term 4 for 2008, with location and times to be agreed between the parties.
(c)By telephone and internet at any reasonable time, but at a minimum by telephone every Friday night from 7pm to 7:30pm (EST).
All travel expenses in relation to the children be paid by the grandparents, with the mother to pay for one trip per year for each of the children (return).
The mother will provide financial support to the children in accordance with any administrative assessment carried out by the Child Support Agency.
The consumption of alcohol be kept to a minimum whilst the children are in either the grandparents’, father’s or mother’s care.
No visitors are to stay overnight at the home of the grandparents, the father and the mother whilst the children are spending time in their care without the consent of the other parties.
The applicants, father and the mother are to notify each other within
24 hours of any sickness or injury to the children during the time spent with the applicants, father or mother.The applicants, father and the mother are to provide appropriate and safe accommodation for the children whilst they are in their care.
The mother be informed of the length of any custodial sentence served by the father and his release date.
The applicants are to ensure that any reports, newsletters or important information relating to the children’s attendance and progress at school/day care are made available to the mother.
The mother is to be kept informed of the children’s progress at the school/day care centre and any behaviour issues and any notification of events affecting the children in regards to parent/teacher nights, sporting and social events.
That the applicants, father and the mother be restrained from denigrating the other in the presence of the children or knowingly permitting any other person to do so.
The matter be transferred to the Rockhampton circuit of this Court, in FM Coker’s docket.
AND IT IS NOTED:
(a)Upon transfer of this matter to FM Coker’s docket, the issues of allocating a final hearing date, appointing an Independent Children’s Lawyer, and allocating a reportable family conference will be considered by FM Coker.
IT IS NOTED that publication of this judgment under the pseudonym Richards & Howard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 404 of 2008
| MR RICHARDS & MS RICHARDS |
Applicants
And
| MS HOWARD |
Respondent
REASONS FOR JUDGMENT
Introduction
The factual matrix of this matter is complex in ways that are not all that commonly encountered. To say that the immediate interim and urgent application is a relocation to North Queensland from the [X] area belies the complexity when it is further stated that the application is made by D and K’s paternal grandparents and is supported by their father Mr R who is not a party to the proceedings.
D and K are seven and five years old respectively.
Their father pleaded guilty to nine charges in [X] Local Court last month. He will be sentenced on 21 August later this year. The offences range from malicious damage to negligent driving to common assault. He has already been disqualified from driving on a drink-driving charge.
The grandparent applicants have another son who is to undergo brain surgery in Queensland later this month, hence the degree of urgency of the application. In addition to this terribly simplified account of the facts thus far, the children's mother Ms Howard has provided five affidavits, four of which are all sworn on 4 April this year, but not all of them were filed on the same day, being 11 April. In them she deposes to (a) the troubled relationship with the children's father, (b) difficulties with the paternal grandfather and the wider Richards family and that (c) she does not wish the relocation to take place. Having so many affidavits by the same person all on the same date makes identification somewhat difficult. For current purposes I will simply refer to them according to the folio place in the Court file as "first affidavit", "the second affidavit" and so on.
Ms Howard proposes that she and the maternal grandparents have equal shared parental responsibility for the children. She also proposes as an alternative that if the relocation application is granted, the children spend defined time with her during the school holidays.
As will be set out further below, the complexities do not end there.
Through her legal representative, Ms Pitts, and in her affidavit material, Ms Howard also acknowledges that Mr Richards senior, one of the applicant grandparents, has offered to cover the cost of
Ms Howard relocating herself to [G] in North Queensland. Ms Pitts readily and properly acknowledged that this was a very generous offer, not to say that it is rather unusual to have such generosity offered in proceedings of this kind. It is certainly not the kind of thing one usually encounters in relocation applications.
Proposals
More formally, let me set out the proposals as I understand them. For immediate purposes it is sufficient to note that the applicant grandparents seek orders (a) that the children relocate to [G] and live with them, (b) that the grandparents, the father and the mother all have equal shared parental responsibility for the children and (c) that the children spend time with their mother during the Christmas/January school holidays and at other times to be agreed. Telephone contact is proposed also. Otherwise, I do not need to detail the remainder of the orders they seek.
For her part, Ms Howard has filed two separate documents: firstly, an Application in a Case filed on 14 April this year, and a second document, a Response, filed on 30 April. The former seeks orders in the alternative, that:
a)the children live with her and that she have sole parental responsibility for them; or
b)she and the grandparents have equal shared parental responsibility and that she spend time with the children as specified in that Application.
In her Response Ms Howard seeks orders - the Response, as I have already said, was filed more recently on 30 April - that are somewhat different to those set out in her Application in a Case. I have already noted them, but for the sake of completeness I do so a little more formally here. She seeks that she and the grandparents have "joint responsibility" for the children, that the parties, that is, each of the grandparents and Ms Howard - notably not including the father - have sole responsibility for the day-to-day care of the children when they are in the care of each of the parties. Thirdly, Ms Howard seeks, alternatively, that:
a)the children live with her; or
b)the children live with their grandparents in [X]; or
c)the children live with the grandparents in [G] and the children spend time with their mother as set out in detail in the Response.
Let me add some further pieces to the puzzle, because I need to record some additional factual matters that are relevant to those that I have already outlined.
First, consent orders were made on 18 October 2004 which provided that the children live with their father and spend time with their mother. Further consent orders were made on 28 January 2005 which also provided that the children live -
full time with their father until the mother finds suitable accommodation in [X].
Under these later consent orders the mother was to spend time with the children at the father's home. Without qualification, the orders provided that the father was to have responsibility for the health and medical treatment of the children, as well as their education.
Secondly, yet further consent orders were signed on 27 November 2007. Although they are presented as a document to be filed in this Court, no registry or other stamp appears so as to indicate that it was ever filed with the Court. In any event, it is signed and witnessed by the children's parents. I make no comment about the additional signature on the document, being that of Ms Pitts, Ms Howard's solicitor. That document refers to yet another set of "existing final orders" said to be dated 1 February 2005. The document also refers to a file number of this Court. So far as I can tell, however, neither that file nor these final orders are before me. Why that is so I do not know.
In any event, the "consent orders", which are stated to provide for the children to spend time with their mother, and by reference and/or incorporation of the previous orders for the children to continue to live with their father, are presumed to continue.
The final extra relevant fact is that there is annexed to a number of affidavits a document headed "Terms of Agreement". It is dated 13 December 2007. The fact that it is attached to many of the affidavits filed thus far suggests that the parties attach some significance to it. It is signed by the current applicant Grandparents and by Ms Howard. It too is witnessed by the mother's solicitor, Ms Pitts. It provides for the children to be "given to the custody of their grandparents" from that date, namely 13 December 2007, until 15 February 2008. Under that agreement the children are to reside with their grandparents in [G], Queensland. The agreement confirms that it was entered into freely and without duress or inducement.
In the light of the above summary - and that is all it purports to be - the case readily and easily satisfies what Warnick J described in the 2006 decision of B v B:
In most cases about parenting orders under the Family Law Act, there is no conceptual difficulty in the Court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as "relocation cases". That is because when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. This is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.[1]
[1] [2006] FamCA 1207 at [1].
Respectfully, I adopt his Honour's comments, even more so where we are dealing here not with a proposed relocation of a parent, but with grandparents who have had a significant involvement in care of the children. In this regard I note the importance of s.60CC(3)(b)(ii).[2]
[2] For a recent discussion upholding parenting orders in favour of Grandparents, see the Full Court’s discussion in Dennett & Norman [2007] FamCA 57 (13th February 2007) and the cases there cited by the Full Court, especially at pars.[53] – [60].
So by way of summary thus far, the following may be said without much fear of contradiction:
a)For significant periods of time in recent years the day-to-day responsibility for the children has formally and practically resided with the father and more recently with the applicant grandparents.
b)None of the parties seek to join the father in the proceedings. The grandparents seek that he have equal shared parental responsibility with them, while Ms Howard seeks either sole parental responsibility or equal shared parental responsibility with the grandparents but not with the father.
c)I agree with the mother's contention set out in para.10 of her first affidavit and there seems little dispute about it, that she has spent rather little time with the children since July 2007.
d)
The final thing to observe - and I do so without intending any criticism - is that Ms Howard seems to have what might be described in a very general sense as a somewhat laissez-faire approach to her parenting of the children. I do not suggest that she has abandoned or assigned her parental rights. Rather, to put it another way, it seems clear that her parenting style is significantly different to that of both the father and the paternal grandparents. As I have said, this difference in style or approach is not intended as a criticism, although clearly both the father and the grandparents express concerns for the children about
Ms Howard's parenting capacities. Unsurprisingly, Ms Howard rejects their contentions in this regard. Also not surprisingly, it may be that such criticisms of her by the grandparents in particular explain to some degree why she says that she feels pressured by them and that she finds them domineering. She notes this in para.19 of her second affidavit.
e)All of that said, Ms Howard, as I have already noted, has put alternative proposals to the Court regarding the parenting and care of the children including, it would seem, that she would accept, presumably on an interim basis at least, a shared care arrangement of some sort with the grandparents, or as a third alternative, time with the children during holiday periods.
Jurisprudential principles
[4] Those decisions are at (1999) 199 CLR 160 and (2002) 211 CLR 238 respectively.
I turn now to legal principles to be applied. I recently gave judgment in a relocation case, albeit that it was on a final basis, whereas here it is on an interim basis.[3] At pages 56 and following of that judgment I set out a summary of principles with reference to a range of cases that seek to support each of the summary principles that I outlined. The main cases to which reference is made (not an exhaustive list) begin, of course, with the High Court relocation decisions in AMS v AIF and
U v U.[4]I also document Full Court relocation judgments including
A v A, P v P and Bolitho and Cohen.[5] I will simply note the following summary from that judgment of mine without reference to the relevant paragraphs of the cases cited, which are otherwise readily available.
[5] Respectively (2000) FLC ¶93-035; (2005) FLC ¶93-239; (2005) FLC ¶93-224.
[3] F v F (2008) 38 Fam LR 52.
First, in the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of a parent with whom the child resides. Again I stress the fact that we are dealing with an unusual case here where the relocation application has been brought by the grandparents rather than by either of the parents, although I note that the father has indicated that he will relocate to [G] as soon as his circumstances permit.
Secondly, the overarching issue is to ensure that any parenting order is in the best interests of the child. This is to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents on the other, priority must be given to the best interests of the child.
Thirdly, freedom of movement of parents is a significant priority. Fourthly, there is no presumption in favour of a custodial parent to reside wherever he or she wishes. Fifthly, the applicant who seeks to relocate need not establish compelling reasons for such a move, nor does either party bear an onus to establish whether to relocate is or is not in a child's best interests.
Next, transport and modern means of telecommunication may be relevant factors in making proper arrangements as between a child and the non-resident parent or parents, especially in relation to relocation within Australia. Next, in determining a relocation case that involves changed parenting arrangements the Court must evaluate each of the proposals advanced by the parties without necessarily being bound by them. Put another way, without embarking upon some roving inquiry and subject to the evidence led and according procedural fairness to all, the Court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child.
The final matter to note, and which I quote regularly in this Court, is a section from the joint judgment of Gummow and Callinan JJ in U v U. At para.92, their Honours said:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents. Obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
As with any and every relocation, indeed as with any and every judgment in family law matters, some sacrifice will also be involved here. To these principles I would only note the very helpful important judgments of Boland J in Morgan v Miles and Kay J in Godfrey v Sanders, as well as the further decisions of the Full Court in Taylor v Barker, and to the degree relevant, the signal judgment of the Full Court in Sampson v Hartnett (No 10),[6] though the circumstances there are very different to what is before us today. There is also a very recent case of the Full Court in Lamereaux v Noirot,[7] a case involving international relocation, although decided on appeal on grounds relating to matters of evidence and procedural fairness.
[6] For ease of reference I note the relevant citations here in the order in which they appear in the body of the text: Morgan & Miles (2007) FLC ¶93-343; Godfrey & Sanders [2007] FamCA 102; Taylor v Barker (2007) 37 Fam LR 461; Sampson v Hartnett (No 10) (2007) FLC ¶93-350.
[7] (2008) FLC ¶93-364.
Returning to Morgan v Miles, Boland J said at para.72 that:
The Act does not treat relocation cases as a special category of parenting orders.
At para.74 her Honour said:
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent with whom a child lives predominantly at the time of the application obtains such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
Her Honour went on to say at para.86:
I conclude, the legislation, including the matters referred to in Goode -
obviously referring to the Full Court judgment in Goode v Goode -
does require a consideration of s.60CC, s.61D and s.65DAA.
Because it was not fully argued before her Honour, Boland J could not deal with situations, such as here, where there is an interstate relocation. Her Honour did comment, however, at para.91 that:
It is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move.
A little later in the same paragraph she said:
There may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent, particularly if the child has a history of living predominantly with the relocating parent and spending time with the other parent where, with alternate arrangements, the child's relationship with the non-relocating parent can be maintained.
I move to a consideration of the sections referred to by Boland J and prescribed by the Full Court in Goode v Goode.[8] I begin as required by attending to s.61DA(3) with the evidence, such as it is, regarding the application of the presumption of equal shared parental responsibility. At this stage, and in the light of the limited evidence available to me,
I consider it to be in the child's best interests that Ms Howard and
Mr R, notwithstanding that he is not a party to the proceedings, and the applicant grandparents, all have equal shared parental responsibility. There will be an order to this effect.[9]
[8] (2007) 36 Fam LR 422.
[9] In this regard, and given the urgency of the application, I simply note – without discussion – the import of s.65DAC regarding the effect of parenting orders that provide for shared parental responsibility.
It is indicated in Goode v Goode and by Boland J in Morgan v Miles that the statutory regime in Pt.VII of the Act, in particular s.60B(1), (2) and s.60CC(2)(a), is to ensure that a child has a meaningful relationship with his or her parents to the maximum extent consistent with the best interests of the child. Slightly more expansively, the intent and substance of those sections may be summarised this way: the objects and principles in s.60B(1) and (2) relevant to this case where there is no issue, as I perceive it, of violence or abuse involving the children, and therefore they do not need protection, relate particularly to ensuring that:
a)D and K have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)that their parents ensure that they fulfil their duties and meet their responsibilities as their parents;
c)that their right to know and be cared for by both their parents to the maximum extent consistent with their best interests is justly satisfied; and
d)to spend time with each of them on a regular basis is also justly satisfied.
In considering these objects and principles and any primary and additional considerations in s.60CC, they are all designed to facilitate the Court in making orders that are considered to be in the best interests of the children pursuant to s.60CA. These basic principles, however, need to be qualified in this matter because of the substantial involvement of the applicant grandparents in the lives and care of the children and the fact that there are a number of question marks over the father's situation, at least until after 21 August when he is sentenced in relation to the nine charges to which he has pleaded guilty.
There are significant gaps in the evidence in the proceedings to date, notwithstanding the number of affidavits filed. As well as gaps, there are, unsurprisingly, a significant number of areas of contest and conflicting evidence. Such situations were recognised by the Full Court in Goode where their Honours acknowledged that such was the usual nature of interim proceedings. Certainly there is competing evidence about the nature of the children's relationship with both parents, although it is clear that they have been with either their father, who by agreement with the mother has had primary care and responsibility for them for some time, or more recently with their grandparents. Such is the best one can say for the purposes of s.60CC(3)(b). There is nothing, so far as I can see, of any views expressed by the children for the purposes of s.60CC(3)(a).
The matters already canvassed in these reasons are relevant, admittedly to a limited degree, to sub-paras.(c) and (i) of s.60CC(3) regarding the responsibilities of parenting and promoting and encouraging a close and continuing relationship with the other parent. To say the least, there is conflicting evidence in this regard.
The matters of most immediate concern are set out in s.60CC(3)(d) and (e). These provisions relate to the likely effect of any changes in the child's circumstances, notably separation from either of their parents or other person, and the practical difficulty and expense of a child spending time and communicating with a parent, and the impact of this on maintaining the personal relations with both parents on a regular basis. As already noted, Boland J adverted to this specifically in Morgan v Miles.
The matters relevant to sub-paras.(d) and (e) may also be relevant to a consideration of s.65DAA. In my view, the orders I propose in the light of the circumstances of the case, and therefore to the degree practically and reasonably possible, are prescribed in s.65DAA(5). Indeed, in an address by her Honour Boland J to a 2008 Family Law Intensive in Sydney commenting on her judgment in Morgan v Miles, she said this (at page 31 of her presentation):
If a judicial officer finds advantages in one parent spending equal or substantial or significant time with a child, then he or she must consider whether such arrangement is reasonably practical by consideration of the matters enumerated in s.65DAA(5); distance, capacity to implement agreement, communication between parents, impact on child or any other relevant matter.[10]
[10] Boland, J. A Review of the Case Law 2007 – 2008: An Update, 2008 Family Law Intensive, Sydney.
Indeed she said a little earlier in her address that the provisions of s.65DAA are of considerable significance in a case involving a relocation and:
The section may provide a suitable structure to consider the advantages and disadvantages of the proposed relocation.
Respectfully, I agree with her Honour's remarks.
It would appear that following the children's time living with their grandparents for some months in recent times and earlier when they lived with their father and spent time with their mother, there was I infer little or no difficulty in maintaining their relationship with their mother, Ms Howard. All of this is not to discount that in a relocation, even on an interim basis, some dislocation and readjustment is required on the part of all children and adults.
Conclusion
In conclusion, on the limited evidence before me I think it is important that three things occur. First, and as a matter of paramount importance, the children should be in the best and most settled environment possible. In my view that is with the paternal grandparents. I have already noted that the father intends to relocate to [G] at the earliest opportunity. Secondly, their parents should have the best opportunity to settle outstanding matters and be in a position to provide the Court at a final hearing with the best and most complete, not to mention succinct, evidence of their living and, if relevant, work situations, particularly in the context of the care and welfare of the children. Thirdly, the matter should be listed at the earliest possible opportunity for a final hearing to ensure there is a full ventilation of the evidence and consideration of what parenting orders will be in the long-term best interests of the children.
For the above reasons, I will grant on an interim basis the application for the children to relocate with their grandparents to [G]. I also grant the order sought by Ms Howard in relation to the times which she proposed the children spend with her in the event, as I do, make such an order. I also consider it to be in the children's best interests that the proceedings be transferred to the Rockhampton circuit of this Court, which is the nearest court to [G], and allocate it to Coker FM's docket. It will be for him to determine the appropriate course in preparation for final hearing, including the appointment of an Independent Children's Lawyer and the appropriate kind of family report. I have not had the opportunity to check, but it may also be the case that the matter is likely to be heard much earlier there than here on a primary basis.
Orders that will reflect these urgently prepared reasons granting the application will be formalised in due course. Should it be necessary, I formally reserve any matters in relation to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 30 May 2008
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