RICHEY & SAWYER
[2010] FMCAfam 753
•29 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHEY & SAWYER | [2010] FMCAfam 753 |
| FAMILY LAW – Parenting dispute – mother seeking to relocate from Melbourne to Auckland – father seeking to retain mother and child in Melbourne – father’s proposal to relocate from Brisbane to Melbourne – consideration of authorities regarding relocation. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 65DAA(2), 65DAA(3) |
| Lansa v Clovelly [2010] FamCA 80 MRR v GR [2010] HCA 4 Hepburn v Noble [2010] FamCAFC 111 |
| Applicant: | MR RICHEY |
| Respondent: | MS SAWYER |
| File Number: | MLC 8042 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 8 June 2010 |
| Date of Last Submission: | 18 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Dr R. Alexander |
| Solicitors for the Applicant: | Simonidis Shoebridge Lawyers |
| Counsel for the Respondent: | Ms K. MacMillan SC |
| Solicitors for the Respondent: | Lander & Rogers Lawyers |
ORDERS
That the mother and child [X] born [in] 2005 (“[X]”) be permitted to relocate to Auckland, New Zealand, but not otherwise save to return to Australia.
That [X] live with the mother.
That the father spend time and communicate with [X] as agreed between the parties, in default of agreement as follows:
(a)In Brisbane
(i)On two occasions per year for a period of seven consecutive days;
(ii)For two weeks over the Christmas holiday period;
(iii)At other times as agreed between the parties.
(b)In Auckland
(i)At reasonable times as agreed between the parties or as recommended by the Family Consultant or as directed by this Honourable Court.
The mother is to pay for the airfares for the travel referred to in paragraph (3)(a) and the father that in (3)(b).
That the father provide the mother with written notification of the time(s) that he is to spend with [X] pursuant to paragraph 3 of the Orders two weeks prior to any such time.
That the parties each do all things necessary to facilitate the father’s communications with [X] by telephone and/or by webcam (at the father’s election) at any reasonable time when she is living with the mother.
That the parties each immediately inform the other of any serious illness or injury sustained by [X] whilst in their care and further provide particulars of any treatment required or received by [X] together with the name and address of the treatment provider and the location at which [X] is a patient.
That the mother authorise [X]’s school to provide copies of her school reports to each party but in the event the schools are not able to do so, the mother shall provide the father with a copy of [X]’s school report upon receipt.
That until further Order the parties each within 7 days provide the other with written confirmation of their respective residential address and provide the other with not less than seven days’ prior written notice and full particulars of any proposed change of such residential address and/or in the case of the mother, [X]’s primary place of residence.
That the application of the father herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Richey & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8042 of 2009
| MR RICHEY |
Applicant
And
| MS SAWYER |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute. It is about how much time [X], born [in] 2005, spends with her respective parents and perhaps even more importantly, where she spends that time.
The issue of where time is spent is in some ways preliminary because the respondent mother wishes to relocate to live in Auckland with her new partner, Mr H. The applicant father wishes to spend time with [X] in Melbourne to which city he proposes to relocate from Brisbane.
For the reasons that follow, I think that [X]’s best interests will be served by permitting the mother to relocate to Auckland with Mr H, and by the child spending substantial amounts of time, as is practicable, with her father both in Queensland and in New Zealand.
Introductory facts
The father was born [in] 1974, and the mother [in] 1975. The father works as a [omitted] (although he has other potential) and the mother has worked for a business known as [omitted] until recently.
The parties commenced to cohabit in either late 2003 or early 2004 and separated in about February or March in 2006. They never married. [X], as has been noted, was born in 2005.
The parties entered into a parenting agreement in June 2007, but in February 2008 the father agreed that the mother should relocate to Melbourne where she took up her work with [omitted]. It was agreed as part of the move that the mother would pay for the father to come to Melbourne once per month for a year.
Although various applications and responses have been filed, the ultimate position of the parties is that the father wishes to relocate to Melbourne and spend substantial and significant time with [X] there. The mother wishes to relocate to New Zealand and for the father to spend time with [X] in both countries.
The father is an Australian citizen and has lived the preponderance of his life in Queensland. The mother is a New Zealand citizen and has lived most of her life there, although she has lived for substantial amounts of time in Australia.
Following her relocation to Melbourne in February 2008, where she initially commenced to live in Mr H’s house, she rapidly entered into a relationship with him. I accept her denials that the relationship pre-existed the relocation.
Mr H and the mother have been together as a couple living with [X] in settled accommodation in Melbourne since about March 2008, and she proposes to marry Mr H in October 2010.
Mr H’s business, by which the mother has been employed, conducts the business of [omitted, currently in Melbourne]. There are it would appear few of these around the world and Mr H has a world sought after expertise.
This is important because the contract in relation to [Melbourne] is, according to Mr H and the mother, coming to an end shortly and he has an offer of employment in the same field in Auckland in connection with [omitted].
Although much was made by counsel for the father of what was said to be deliberately late provision of affidavit material by the mother and the non-provision of documentation proving the lapse of the contract in relation to [Melbourne], I have no doubt that matters are as Mr H and the mother say they are. Their evidence was given with conviction and I accept it.
The father, who has remained in Brisbane completing studies and discharging an obligation arising from his earlier studies to do so, has proposed to relocate to Melbourne. He has previously proposed to relocate to wherever [X] lives in Australia including Perth, which he has never visited and where he has no family or friends. The father confirmed that that was his position in his oral evidence.
[X] has some diet issues which have been the subject of dispute between the parties in the past but it is sufficient for these purposes, as indeed for all purposes to do with [X]’s well-being, that both parties formally accept that the other is perfectly able to care for [X] while she is in their care.
Communication between the parties
Unfortunately communication between the two parents is extremely poor. Although communication was initially between the mother and the father, by mid 2009 the mother had refused to deal directly with the father and delegated this task to Mr H.
In cross-examination it was conceded by the father that, on
13 December 2008, the father sent the mother a message in which he referred to Mr H as a “fat cunt”, and on 27 March 2009 he sent a message to her in which the words “fuck you” and a threat to “come down on you like a ton of bricks” were put forward.
In the circumstances, the mother’s lack of desire to deal directly with the father is in my view understandable and can scarcely be said to be inappropriate.
Exhibit R3 is a letter from the mother to the father (or the first few pages thereof) and its terms to the father are courteous and considered.
There is nothing in that correspondence to suggest that the mother’s decision to break off direct personal contact with the father was occasioned by spite or lack of insight.
Exhibit R2 is a thoroughly unpleasant email exchange between
Mr H and the father from February 2010. The father’s e-mail, which he conceded in cross-examination was abusive and intimidatory, reads as follows:
“[X] as [sic] no family over there you wanker. They are all here. I hope your business goes tits up, and I will make sure that you never relocate her there. She belongs here, near me. This will happen sooner rather than later and if it means I ruin you in the process so be it. Whilst I’m not living near her, the monthly visits will still need to happen. For a start, this wont [sic] look favourably in court that you have denied me of this, and secondly, I will consider opening up your face. Don’t push me. Feb 20 or 21.”
It should be noted that Mr H’s response to this e-mail was, in the circumstances, courteous, considered and restrained.
To the father’s credit he admitted unequivocally sending this correspondence (he had little choice perhaps in the circumstances, as it is a clearly recorded e-mail) and conceded that his conduct was wholly inappropriate. His honesty does him credit, but the unpleasant way in which he saw fit to express his, no doubt, rather raw emotions at the time, expressed in the context of his fears that [X] would be removed to New Zealand and lost to him, nonetheless is of deep concern.
It is to Mr H’s credit that he has been able to maintain a calm and tolerant response to the father notwithstanding messages and emotions of this character.
Credit of the witnesses
I heard evidence from the father, the mother, Mr H and Ms S, all of whom were honest witnesses.
The three primary parties in the proceeding all responded directly and honestly, and were clearly telling the truth as best they were able.
I would only say by way of comment that the father presented as a man of considerable emotional intensity, and I was not surprised that the tenor of the mother’s answers was one in which she sought to maintain her distance from him given their interpersonal history.
Mr H was an extremely impressive witness who responded directly, responsively and truthfully in my view to the questions put to him.
Where I make findings of fact further in this judgment, they reflect the credit findings that I have made above.
The proposals of the parties
The father seeks, and this is agreed, that the parties have equal shared parental responsibility for [X]. He seeks that she live with the mother, but spend time with him in accordance with the final orders sought in his further amended initiating application filed on 26 May 2010.
Those orders contemplate the father relocating to Melbourne and a pattern of five nights of fourteen spent with him. He also seeks that the mother be restrained from relocating out of the greater metropolitan Melbourne area.
In the alternative, and in the event that the mother is successful in her application to relocate to Auckland, he seeks to spend time with [X] for four periods each year in New Zealand and for three periods in each year in Australia, with the mother to be responsible for transporting the child to and from Brisbane. He seeks that the mother pay for all travel involved.
The mother seeks the orders set out in her response. She seeks to be permitted to relocate to Auckland, and that the father spend time with [X] in Brisbane for two occasions per year for seven days and for two weeks over the Christmas holiday period. She further seeks time in Auckland as agreed between the parties or as reasonably recommended by the Family Consultant.
The Family Consultant, Ms S, gave evidence and was cross-examined. Her evidence was given with the resonance of her experience and in a compelling fashion. To the extent that there is any challenge to her evidence, I reject it.
Ms S’s evidence was that [X] is very well adjusted with both parents. Ms S was concerned at the poor level of communication between the mother and father. In relation to the relationship that [X] had with her parents, she said at paragraph 44:
“No concerns arose from the observation sessions about the nature of these relationships. Given that [X] had relocated to Melbourne when she was about two and a half years old and since then she and Mr Richey have managed to maintain a very significant relationship it is my view that this demonstrates a commitment from Mr Richey and also from Ms Sawyer to ensure this relationship was maintained. It is my view that Mr H has also supported this relationship.”
At paragraph 46, Ms S continued:
“It is my view that it would continue to be in [X]’s best interest for Mr Richey and Ms Sawyer to share parental responsibilities for [X] whether there is relocation to New Zealand or not. The issue is more about Mr Richey and Ms Sawyer developing a parenting relationship so that they can discuss issues about [X] even if it requires using mediation to do so.”
Ms S went on to say in her report that there were difficulties whether relocation was permitted or not (an observation that is only common sense) and expressed the view that if relocation was to be permitted then it would be best prior to [X] starting school in 2011.
At paragraph 52, Ms S said:
“It is my view that if relocation is granted [X] will not suffer directly at this time providing that she continues to spend as regular time as possible with Mr Richey and that her time with
Mr Richey is not less than it has been while she has lived in Melbourne. It is my view that for [X] at this time there would not be a great difference in how it is now for her compared to how it would be living in New Zealand given that for the last two or more years [X] has been separated from Mr Richey in this way.”
Ms S recommended that the parents attend a post-separation parenting program at an accredited agency to assist them with their various difficulties in inter-communication, and she further recommended that [X] communicate with Mr Richey once each week by phone, as well as skype, e-mail and any other form of communication that [X] could manage.
In cross-examination Ms S confirmed that, provided there was support and ongoing communication, particularly support by Ms Sawyer for the maintenance of Mr Richey’s relationship with [X], visits on school holidays three to four times per year would be enough.
Consideration
I have had regard to the authorities referred to me by the parties.
I note, in particular, the helpful discussion by Murphy J in Lansa v Clovelly [2010] FamCA 80, particularly at [15]-[16], a case which must be approached with the caution that it was delivered before the recent decision of the High Court in MRR v GR [2010] HCA 4. I also note the observations of the Full Court in Hepburn v Noble [2010] FamCAFC 111 at [100] about the effect of the changes introduced in 2006.
For my part, I confess that the more one reads the authorities, the more it seems to me that relocation cases simply raise, perhaps in a more complex but direct way than other cases, the application of the best interest principle that in large part guides the Court’s approach to children’s issues.
Both parties agree that there should be shared parental responsibility, and I entirely agree. There is no possible basis upon which, on the facts of this case, the presumption in s.61DA would be rebutted.
This necessarily brings one immediately to s.65DAA of the Family Law Act 1975 (“the Act”). I am required to consider whether [X]’s best interests would be served by spending equal time with each of her parents. I am also required to consider as a separate issue (see MRR) whether this would be reasonably practicable and, if it is, consider making an order to provide for equal time.
In the particular circumstances of this case, however, most particularly that neither party seeks it in any event, and bearing in mind [X]’s very young age, it is quite clear that equal time is not appropriate.
The Court must then consider, pursuant to s.65DAA(2), whether [X] should spend substantial and significant time with each of her parents and further, whether such an order is reasonably practicable.
Substantial and significant time is, of course, defined in s.65DAA(3).
In a sense, both parents seek this, and the orders I make will necessarily, whichever I select, provide for it. Nonetheless, the outcome proposed by each of the parents is radically different. Both are reasonably practicable.
In my view, it is appropriate at this stage to turn to s.60CC of the Act, bearing in mind, of course, the objects set out in s.60B.
Section 60CC(2)
There is no question that, in the context of the established and secure relationships [X] has with her parents, it is to her benefit to have a meaningful relationship with both of her parents. Further, there is no evidence that there is any need to protect her from physical or psychological harm, from being subjected to abuse, neglect or family violence.
Section 60CC(3) – (I deal only with subparagraphs that are relevant)
Section 60CC(3)(a)
The child has not expressed any views, and was not requested to do so by Ms S given her age. I note, however, the passage already quoted in which Ms S opines that should [X] go to New Zealand, it is not likely at this stage to be confusing or difficult for her because it is not likely to seem to her much different from living in Melbourne while her father has been living in Brisbane.
Section 60CC(3)(b) – Nature of the relationship of the child with her parents and other persons
[X] plainly has a very good relationship with both of her parents, although it is equally clear that her primary attachment is to her mother. The mother has after all been the primary carer. She equally clearly has a very good relationship with Mr H and, so far as I am able to say, appears to have at least the possibility of good relations with her grandparents and other family members.
Section 60CC(3)(c) – The willingness of the parents to facilitate a relationship with the other one
Both parents, in my view, are open to some question on this heading. The conduct of the father in making threats to the mother and to
Mr H scarcely suggests an optimal understanding on his part of his obligations in this regard. Similarly, although she may not be in fact directly aware of it, I could not avoid the impression that one of the reasons the mother wishes to relocate to New Zealand is, whether consciously or otherwise, to distance herself from the father.
Against these implicit criticisms, however, it must be said that both parents have performed admirably thus far. [X] would not have, as
Ms S points out, the good relationship she has with both parents if they had not both sought to promote it. I think that, despite some reservations, it must be said that both parents will do what is properly required of them to foment a good relationship on the part of the other with [X].
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances
This is, of course, a critical issue. On the one hand if the relocation to New Zealand takes place, [X] will be living in a different country, albeit one that is in many ways closely aligned to Australia. Her father will clearly, whether his fears are well based or not, be disconcerted by any such relocation. As he said himself, “One has to draw a line somewhere”, and he draws the line as the boundaries of Australia.
A move to New Zealand would, of necessity, make contact with any family living in Australia more difficult, and would prevent the extended contact that the father would seek when he relocates to Melbourne.
Against that, however, I have the evidence of Ms S as to the likely lack of impact upon [X] in the event that the relationship with the father continues to be properly supported by Ms Sawyer.
Furthermore, a failure to permit relocation is likely, of itself, to be damaging directly or indirectly to [X]’s best interests.
While Mr H candidly conceded that in the event that relocation was not permitted and he returns to Auckland (which he plainly is going to do) he would endeavour to maintain his relationship with the mother, it is only natural in the scheme of things that the mother would be desperately put out. Her relationship with Mr H would necessarily be put under considerable strain, she would lose the constant presence of her partner and proposed husband, and [X] would lose the benefit of her continuing contact with Mr H.
Although Mr H travels reasonably regularly, it is clear he is, to all effects and purposes, a constant in the life of the mother and [X].
Section 60CC(3)(e) – The practical difficulty and expense of [X] spending time with her father and whether this will affect her relationship with him
Plainly, for [X] to go to New Zealand will create significant practical difficulties for the father seeing her. Nonetheless, for the reasons already given by Ms S, and to which I have already referred, I do not think it will interfere, of itself, with the relationship that [X] has with her father.
I note that the father was quite prepared to relocate to Perth which he has never visited and where he knows nobody. It is true to say, as the mother’s counsel does, that the journey to Auckland is substantially less than a journey to Perth and, indeed only marginally more than the journey to Melbourne. These observations, however, need to be qualified by the fact that the father’s proposals about Perth and Melbourne were posited on the basis that he would relocate rather than continue regularly to visit.
In my view, an order requiring the mother to contribute substantially to the costs of international travel will go a long way to addressing the father’s concerns in this regard. On the facts as I understand them, the mother will be well able to make such a contribution.
Section 60CC(3)(f)
Each parent is well able to care for [X], and Mr H is plainly a very devoted assistant also.
Sections 60CC(3)(g) and (h)
These are either already dealt with, subsection 60CC(3)(g), or irrelevant, sub-section 60CC(3)(h).
Section 60CC(3)(i)
I repeat that both parents have shown a commendable attitude towards their parental responsibilities and deserve great credit for doing so.
Section 60CC(3)(j) and (k)
These are not relevant.
Section 60CC(3)(l)
The orders I propose to make are in my view likely to bring some measure of finality to the dispute. I note that the mother expressed the view that the difficulties of communication between her and the father might well settle down when litigation is over, and I strongly suspect that this will be so. It is a common experience.
Section 60CC(3)(m) – Any other matter considered relevant
In my view, the desire of Mr H to follow his business to Auckland is eminently reasonable. It is also eminently reasonable that the mother should wish to accompany him, both because she will retain some element of work and, more particularly, because she will stay with the man with whom she lives and who she proposes to marry.
It is, of course, the case that the move to Auckland may well not be permanent, and it is possible that further thought will have to be given to future arrangements if a further move is contemplated. I note
Mr H’s very proper concession that while his business could conceivably involve travel to other overseas countries, this was not something he felt was proper given the father’s role in [X]’s life. The draft orders I will make will endeavour to restrict any further movement by the mother, save to Australia.
Once it is accepted, as I think it must be, that it is in [X]’s best interests that her mother remain happy and secure in a relationship which, after all, has endured for half of [X]’s life and produced this happy and well adjusted child, it becomes overwhelmingly obvious that relocation should be permitted.
In saying this, I am keenly conscious of how disappointing this will inevitably be to the father who has made exemplary endeavours to be involved in [X]’s life, including his preparedness to relocate to Melbourne.
It is plainly desirable to keep [X]’s relationship with her father in the healthy state it is presently in. Nonetheless, [X] is now five and the pattern of her life up until now has involved seeing her father only on relatively infrequent occasions.
In my opinion the relocation should be permitted. I have prepared draft orders to give effect to these conclusions and will give the parties an opportunity to be heard in case there is any matter I have overlooked.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 29 July 2010
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