RLG and Al
[2003] FMCAfam 584
•4 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RLG & AL | [2003] FMCAfam 584 |
| FAMILY LAW – Children – contested residence – residence and relocation – application to remove children interstate – best interests of children – wishes of children. Family Law Act 1975 (Cth), ss.60B; 68F; 65E AMS v AIF and AIF v AMS (1999) 24 Fam LR 756; FLC 92-852 |
| Applicant: | L G R |
| Respondent: | L A |
| File No: | PAM 623 of 2003 |
| Delivered on: | 4 December 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 27 & 28 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Meehans Solicitors |
| Counsel for the Respondent: | Mr Henness |
| Solicitors for the Respondent: | R.J. Russell Solicitors |
ORDERS
All previous parenting orders are discharged.
The children K A L R, born 31 July 1989 and B J R, born 18 January 1991 are to live with the applicant father.
The father and the mother are to share the long-term decision making in respect of the care, welfare and development of the children.
The party having the day to day care of the children is to have the responsibility for making the day to day decisions in relation to the children whilst they are in the care of that party.
The father is permitted to relocate the residence of the children from New South Wales to the S E area of Q.
The mother is to have contact with the children:
a)For half of each Q school holiday period, at times agreed between the parties and in the absence of agreement the first half.
b)For one weekend during each Q school term, being a weekend approximately during the middle of each term from Friday evening until Sunday afternoon, extending to the Monday afternoon if the Monday is not a school day and
c)At such other times as the parties agree.
The father is to advise the mother of a suitable weekend for the weekend contact in order 6(b) no later than fourteen (14) days prior to the start of the proposed contact weekend.
The mother is to provide the father with telephone numbers upon which the children can be reached during any period of contact.
The father is to be responsible for transporting the children to and from Sydney for all contact.
Where the children travel to Sydney by road for the purposes of contact, the father must deliver the children to the mother and collect the children from the mother's residence at the end of each contact period.
Where the children travel to Sydney and return by air, the father must deliver the children to the appropriate airport in Q and the mother is to collect the children from the appropriate airport in Sydney and return the children to the airport in Sydney at the end of the contact period in sufficient time for them to catch their return flight.
The father must advise the mother of all flight details concerning the children's travel for contact no later than ten days prior to the day when the children are to commence their travel.
The father is to be responsible for all costs associated with contact travel, including, but not limited to airfares.
The mother is to have contact with the children by telephone at all reasonable times to include but not be restricted to:
(a)Mother's Day;
(b)Christmas Day; and
(c)The children's birthdays.
Each party is to notify the other of any change to their residential address or telephone number within seven days.
All documents produced on subpoena may be returned after one month from the date of these orders.
The application is removed from the pending cases list.
I require a transcript of my reasons for this decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 623 of 2003
| L G R |
Applicant
And
| L A |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two children, K-A L R, born 31 July 1989 and B J R, born 18 January 1991 for orders that:
(a)The children should live with him.
(b)That he be permitted to relocate the residence of the children from the Sydney metropolitan area to the S E Q area; and
(c)That the mother should have contact with the children during the Q school holidays.
The mother opposes these orders. In her response, filed 10th April 2003, she asks for orders that the children should live with her. After the evidence was completed her counsel, Mr Henness, submitted that even if the children were not to live with the mother, the father should be obliged to stay living with the children in Sydney.
Background
The father and mother met in December 1987 and the two children were born during that relationship. They separated in 1992 and they commenced proceedings in the Family Court later that same year. The parties consented to orders that the children would live with the mother and the father would have contact with them. The mother has a son by a previous relationship, named C. C was born on 23 July 1985. He lived with the mother until earlier this year.
The mother married one D C in September 1993 and there is one child of that marriage, a girl called M. M is now aged ten. She lives with the mother. The mother's relationship with D C ended in January 1994. The mother reconciled with the father in 1995 and commenced to live with him from Christmas Eve 1995. The children came to live with them as well.
The mother and father separated for the final time on the 28th August 2000. The mother has since married D A on the 29th July 2002. Mr A has two children by a previous marriage, a girl called L and a boy called D.
The father has since remarried. He met his current wife, K, in May 2002. They commenced living together in about November 2002 and they were married on the 4th May 2003. K R has a child from a previous relationship, a boy called J, who was born on the 12th July 1997. J lives with Mr and Mrs R and apparently has contact with his own father. I am not aware of the details of such contact.
There have been some changes to the residence of the children during the course of these proceedings. At the time the proceedings commenced, K-A and B were living with the mother. On the 14th April 2003 the parties entered into consent orders on an interim basis that provided for a virtual shared residence arrangement. The children would live with the father from Tuesday afternoon to Friday evening one week and from Wednesday afternoon to Sunday evening the other week.
On the 28th July 2003 the two children left the care of their mother and refused to live with her anymore. They have been living with the father since then. In September the parties entered into a further set of interim consent orders that provided that the children were to live with the father and the mother was to have regular contact. The mother's eldest child, C left the mother's home earlier in 2003 and remained estranged from his mother for several months. He now lives with friends but he has resumed his relationship with his mother. L now resides with her own mother.
The relocation aspect to this case arises because the father wishes to move to C C R which is situated on S S I off the coast of S E Q. He has been offered employment as the security manager for the R, a position which would require him to live at the R. The father's plan is that his wife, her son J and the two children, K-A and B, would move up to C C and live with him there.
Issues
The father says that the children wish to live with him and do not wish to live with their mother and Mr A. C C would offer good opportunities for the children and he believes that some separation might assist the children at getting over their estrangement with the mother. The mother says that the children's wish to live with the father is a comparatively recent development. If the children are to move to S E Q, she says, it would only exacerbate the estrangement between the children and their mother.
Evidence
The father and Mrs R both gave evidence and were cross-examined by the mother's counsel, Mr Henness. The mother and Mr A also gave evidence and they were cross-examined by Mr Kenny, counsel for the father. I ordered that a Family Report should be prepared. Ms L C, a family and child counsellor at the Registry of this Court, prepared a very comprehensive report. Ms C gave oral evidence and was cross-examined by both counsel. A striking feature of the Family Report was the strongly expressed wish by both children that they do not wish to return to live with their mother. Ms C reported that the children were resentful towards their mother for her opposition to their proposed move to Q.
The principles to be applied
The principles which apply to matters of this nature are well settled and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Family Law Act 1975 is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children. Sub-section 60B (2) sets out the principles underlying the object of Part VII which are, except when contrary to the 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)Parents 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.
In this matter, as in any matter where the Court is required to make parenting orders, the Court must regard the best interests of the child as the paramount consideration I refer to section 65E of the Family Law Act. Section 68F of the Act sets out the matters which the Court must consider in order to decide what the child's best interests are. The High Court of Australia has considered the relocation question in AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a Court to require the party who wishes to relocate with the child to demonstrate compelling reasons to justify the proposed relocation. The welfare of the child is paramount, but not the only consideration. Furthermore, it is equally an error for a Court to require the other party to provide compelling reasons or at least a preponderance of reasons for not permitting the party who wishes to relocate to do so. I refer to SMG and RAM (2000) FLC 93-020. The Full Court of the Family Court has more recently considered the issue in A & A: Relocation Approach reported (2000) 26 Fam LR 382; FLC 93-035. In that case the Court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in summary:
i)The best interests of the child are the paramount but not the only consideration.
ii)The Court cannot require the parent who wishes to relocate with a child to demonstrate compelling reasons for the relocation.
iii)The Court has to evaluate each of the proposals advanced by the parties.
iv)Relocation cannot be separated from the issue of residence in the best interests of the child.
v)Evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child.
vi)The Court must consider the relevant section 68F(2) matters in respect of each proposal.
It is no longer the case that the Court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755.
It is still a consideration, however, that in evaluating the competing proposals, the Court may consider evidence that the proposed relocation would be of Befit to the child as much as the parent whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child's best interest is to live in a happy family environment. Ordinary common experience indicates that long-term unhappiness by a resident parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household” (at page 84-222).
The High Court of Australia again considered the question of relocation in U v U (2002) 29 Fam LR 74 where a mother wished to leave Australia with a child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties but is not bound by those proposals. The Court has to look at the matters set out in section 68F and the objective is always to achieve the child's best interests.
The competing proposals considered in the light of section 68F(2)
I am required to give consideration to the relevant section 68F(2) factors as they apply to the parties' proposals. The father wishes to move to C C where he has permanent employment and a house available to him. He wishes to live there with Mrs R, J and the two children. Mrs R gave evidence that she had spoken to J's father about the proposed move but no final decision had been reached.
The father proposes that the children would attend school on the mainland. There is a regular ferry service to and from the mainland. He gave evidence that K R would be working on the mainland and she would take the children to school each day. The father proposes that contact with the mother take place during the school holidays. He would be responsible for the children's travel to and from Sydney for contact during the school holidays, including meeting the expenses. If the father were not permitted to leave the Sydney metropolitan area, he still proposes that the children would continue to live with him.
The mother's proposals are that either the children return to live with her or that they continue to live with their father but they should remain living in Sydney. The mother sees the proposed move to Q as evidence of a plan by the father to destroy her relationship with the children.
Section 68F(2)(a) relates to wishes expressed by the children and their stated maturity. K A was born on 31 July 1989. She is 14 years of age. The counsellor in the Family Report described her as an average 14 year old. B was born on 18 January 1991 and is aged 12 years and 10 months. The counsellor described him as quiet and intense. Both children expressed strong wishes, not just to remain living with their father, but to move to Q with him. The children's views are equally strong that they do not wish to live with their mother and particularly with Mr A.
The counsellor's view of the children's wishes was supported by the children's school counsellor, Nicolette D, to whom Ms C spoke for the purpose of the Family Report. Ms D told Ms C that she was so concerned over B's apparent anger towards his mother that she sought to arrange for the children to have family counselling with their mother. Ms D had not been able to make any arrangements with the mother in this regard.
The children are of an age and a state of maturity where their views would have to be given a considerable amount of weight. I refer to H and W (1995) FLC 92-598, R and R: Children’s wishes (2000) FLC 93-000 and the later decision of R v R: (Children's wishes) (2002) FLC 93-108. The wishes of the children strongly favour continuing to reside with their father and relocating to Q. The children do not wish to live with their mother and Mr A. If the father is not permitted to relocate to Q, the children's resentment of their mother is likely to continue.
Section 68F(2)(b): Relationship of each child with each parent and other adults
The children were observed to relate to both their father and to Mrs R in a comfortable and friendly way. They also appear to have a good relationship with J. K-A told the counsellor she did not like Mr A or his children, L and D. She appeared to be disappointed with her mother and angry towards her. B appeared to be more angry with his mother than the facts would justify and expressed a dislike toward Mr A and his son, D. He did not appear to have much of a relationship with L who now lives with her mother. B spoke with regret about missing his elder half brother, C and blamed his mother for the fact that C had left their home. The youngest child, M, was described by Ms C as emotionally detached from her half siblings. In the observation session, B was observed to try to hug M but she responded to him half-heartedly. D was described as appearing disinterested in both K and B.
Section 68F(2)(c): Likely effect of any change in the children's circumstances
The move to Q would reduce the contact the children have with their mother. If the children are not permitted to move and their father is obliged to remain in Sydney, it is likely that the children's estrangement from their mother would increase. The children are apparently already angry towards her because of her role in these proceedings. If the children were made to return to live with their mother there is a strong possibility that they would either refuse to go or would leave her home as they did at the end of July 2003.
Section 68F(2)(d): Practical difficulties and expenses of having contact
The current contact is problematic. The mother's refusal to allow the children to go to Q would deepen the rift. A move to Q would effectively mean contact only during the school holidays. It appears that the father should meet the expenses and make the arrangements as he is the one who wishes to move. There is a risk that the children's relationship with their mother would deteriorate further.
Section 68F(2)(e): Capacity of each parent to provide for the needs of the children
The father appears to have the financial resources to meet the children's physical needs and he seems to have considered their educational arrangements. It is noteworthy that the father is the one who seems more concerned about facilitating counselling between the children and their mother. The school counsellor told Ms C that she had left a message for the mother to call her but the mother had not done so. The mother, it should be said, denied this.
The mother in her evidence displayed a remarkable lack of insight into the children's estrangement from her. Her views of the children were completely at odds with the counsellor's observations of them. She seemed quite unconcerned that her elder son, C, who had left home earlier this year in unhappy circumstances, had been listed as a missing person for some months. “His father did that” she said dismissively. The mother claimed that her daughter M missed K but the observation by the counsellor was that M seemed detached from both of her half siblings. The mother stuck to her view that the children should return to live with her. She said that they had changed their minds so many times in the past and gave that as an explanation as to why she did not accept that the children did not want to live with her.
She vehemently denied that K did not like Mr A and his two children. “Definitely not true” were her words. She later said that K had said that she should bring C back home, go back to live in A where K was happiest, divorce Darold and get rid of D. She had not asked K why she wished to go to Q. She conceded that K and B would probably be upset if they had to live with her and might run away because the father told them to. She did not believe the children would resent her if they could not go to Q.
All in all the mother seemed to display an astonishing capacity to deny that the two children had serious issues with her and Mr A and to deny that her four children comprised a dysfunctional family unit. She appeared to believe that most of the blame should go to the father.
Section 68F(2)(f): The ages of the children and their sex and background
K is a 14-year-old girl and B is a boy aged 12 years and 10 months.
I have previously dealt with their state of maturity.
Section 68F(2)(g): Violence issues, including the need to protect the children from harm, whether physical or psychological
There are no family violence issues nor are there any apprehended violence orders in force. The only psychological harm is the mother's lack of capacity to deal with the children's resentment towards her.
Conclusions
The children's wishes are very clear and because of their age and state of maturity, have to be given considerable weight. The children clearly wish to remain living with their father, and equally adamant on their refusal to live with their mother and Mr A. The children's antipathy towards Mr A is quite marked. The mother denies it and Mr A said that he was-“Quite shocked”- when he read the Report.
The evidence does not suggest that there is any Befit in the children returning to live in their mother's household. It is significant that in the year 2003, four children have left that household. C left in unspecified but unhappy circumstances and his whereabouts were not known for two or three months. L A left to live with her mother. K and B left of their own accord to live with their father. Of the children who remain living in the household of Mr and Mrs A there remains only M who seems distant from both K and B and D A, who neither K nor B appear to like. B in particular is angry with his mother for the loss of C from the household. The mother may not see anything untoward in this, but it is clearly a cause for concern.
The mother blames the father for her difficult relationships with her children and only accepts a little responsibility herself. It does not appear to me to be in the children's best interests to return to live with their mother, whose care they chose to leave as recently as July this year. Similarly, the mother's proposal that the children should remain living with their father but in S has little to recommend it. True it is that the question of Mrs R's child, J, has got to be resolved, but there do not appear to be any Court proceedings on foot in this regard.
The children wish to go to Q and are likely to blame their mother if they are prevented from doing so. The relationship between the mother and the two children is not good now so it is not likely that it will improve in the future if the children have to stay in Sydney. The father does not have to demonstrate compelling reasons for a move to C C in Q. He has a job and a house in a R that seems to offer sporting facilities and other outdoor activities. He has made appropriate arrangements for the children's education and his proposals for contact seem to be reasonable.
He has established a new family unit with Mrs R and the children appear to be happy in it. The father's proposed move to C C appears to me to be in the best interests of the children, provided that proper contact arrangements are put in place as far as their mother is concerned. The children's relationship with their mother will not improve overnight, however, and there seems to be a need for some family counselling to be arranged before the children move to Q.
It is for those reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 14 January 2004
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