ROBSON & PABEN
[2015] FCCA 1402
•27 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBSON & PABEN | [2015] FCCA 1402 |
| Catchwords: FAMILY LAW – Parenting – applicant seeking to relocate to New Zealand with parties’ nine year old son. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZW |
| AMS v AIF (1999) 199 CLR 160 MRR v GR [2010] HCA 4 |
| Applicant: | MS ROBSON |
| Respondent: | MR PABEN |
| File Number: | MLC 10013 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 13 May 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hutchings |
| Solicitors for the Applicant: | Geelong Family Lawyers |
| Counsel for the Respondent: | Ms Hannan |
| Solicitors for the Respondent: | Slater and Gordon |
ORDERS
The Mother and the Father share long term parental responsibility for the child of the relationship X born (omitted) 2008 (“X”).
X live with the Mother.
The Mother be at liberty to relocate with X to reside in New Zealand on or after Sunday 5 July 2015.
Pending the relocation, X spend time and communicate with the Father:
(a)each week for two nights with the Father to provide the Mother with no less than 7 days notice of his preferred nights;
(b)from the conclusion of school term two on Friday 26 June 2015 until 8:00am on Saturday 4 July 2015;
(c)as otherwise expressly agreed in writing.
Following the relocation, X spend time and communicate with the Father:
(a)by Skype on no less than a weekly basis:
(i)between 4:00pm and 6:00pm New Zealand time when on a weeknight, or at a reasonable time when on a weekend;
(ii)the Mother will keep the Father informed of any nights/times X is unavailable by reason of such things as extra-curricular activities;
(iii)the Father will give the Mother 7 days notice of which nights or weekend days he wishes to communicate with X by Skype and initiate the Skype communications accordingly;
(iv)the Mother will then ensure that X is available for the Skype communication and will afford him privacy during that communication;
(b)by Skype on any special occasion that X will not be spending with the Father including Easter Sunday, Father’s Day, Christmas Day, X’s birthday and the Father’s birthday;
(c)in Australia for 3 periods of 1 week duration during each of the New Zealand school term holidays as agreed between the parties save that:
(i)in the event the first term holidays include Easter, the week X spends with the Father shall alternate each year so that X spends Easter with the Father in the first year after relocation and with the Mother in the following year;
(ii)in the event X’s birthday falls in the third term holidays, the week that X spends with the Father shall alternate each year so that X spends his birthday with the Mother in the first year after relocation and with the Father in the following year;
(d)for ten days during the 2015/2016 long summer vacation with such time to include Christmas Day and New Years Day;
(e)for two weeks in the long summer vacation commencing 2016/2017, such period to include Christmas Day and New Years Day in the 2017/2018 holidays and each alternate year thereafter and on the basis that X is with the Mother for Christmas Day and New Years Day in the 2016/2017 holidays and each alternate year thereafter;
(f)liberally by agreement should the Father travel to (omitted), New Zealand upon giving the Mother no less than three weeks notice of his dates of travel;
(g)liberally by agreement should the Mother travel with X to the (omitted) or Melbourne region in Australia and the Mother will give the Father no less than three weeks notice of the dates of any such travel;
(h)as otherwise agreed in writing from time to time.
Subject to order (5) herein, the travel arrangements be by agreement between the parties and both parties shall use their best endeavours to reach an agreement in a timely manner, but failing agreement by a date 6 weeks prior to the relevant school holiday period:
(a)the Father will confirm to the Mother by email his intention to spend time with X in the upcoming school holiday period and of the dates proposed by him for X’s time with him;
(b)within 48 hours of the Father’s email in paragraph (a) above the Mother will book X’s travel from New Zealand to Australia and inform the Father forthwith by email of the itinerary and of her availability for X’s return travel date;
(c)within 48 hours of the Mother’s email in paragraph (b) above the Father will book X’s return travel from Australia to New Zealand to accord reasonably with the Mother’s availability and with the time provided for by these orders and inform the Mother forthwith by email of the itinerary;
(d)each party will bear the costs of and associated with the travel for X as booked by that party; and
(e)each party should they accompany X on any or all parts of his travel will bear their own costs and the Mother shall accompany X for such travel until such time as the parties agree X is able to travel as an unoccupied minor.
The Mother will facilitate X communicating with the Father and with paternal family members by Skype and/or telephone at all reasonable times that X requests to do so and receiving communications at reasonable times other than as set out in these Orders by Skype, telephone and letter.
The Father, his servants and agents will facilitate X communicating with the Mother by Skype twice weekly when X is spending time with him and on any special occasion that X is spending with the Father including Easter Sunday, the Mother’s birthday, Christmas Day and X’s birthday and at all reasonable times by Skype and/or telephone as X may request.
The Father be hereby authorised by this order to receive all information from X’s place of education, treating medical practitioners and other extra-curricular organisations with which X may be involved from time to time that parents usually receive, and the Mother will keep the Father notified in writing of the names and contact details of same and will provide each with a copy of these orders.
Notwithstanding paragraph (9) above, the Mother will keep the Father informed of X’s progress and development and will provide to the Father no less than twice yearly current photographs of X and pictures, stories or other such material as X may produce at school.
The Mother and the Father, their servants and agents be hereby restrained from denigrating the other parent or members of the other parent’s family in the presence of hearing of X.
The Mother continue to engage in counselling and any other treatment reasonably recommended by her treating professionals for so long as recommended and thereafter from time to time as and if required and upon her relocation to New Zealand the Mother shall continue to engage in counselling and the Mother shall provide all counsellors seen by her with a copy of the assessment of Dr W dated 21 April 2015, the family report of Ms J dated 29 March 2015 and a copy of these orders.
The Mother and the Father each enrol in and complete child focussed counselling with either of (omitted) Support Centre in (omitted) or the Family Relationship Centre in (omitted) and provide their counsellor with a copy of the family report of Ms J dated 29 March 2015 and a copy of these orders.
The parties will communicate by email save in emergency or express agreement otherwise.
The Mother will be restrained from changing X’s place of residence from New Zealand save and except for a return to Australia.
IT IS NOTED that publication of this judgment under the pseudonym Robson & Paben is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10013 of 2014
| MS ROBSON |
Applicant
And
| MR PABEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the Mother’s application to relocate with the parties’ son X born (omitted) 2008 (“X”) to (omitted), New Zealand.
The Father opposes the Mother’s application to relocate with X and seeks orders that X remain living in Victoria, ideally in the (omitted) area and that he live in a shared care arrangement with each of the parties.
Background
The Mother was born in New Zealand on (omitted) 1985 and is aged 29 years. She is currently employed on a temporary basis as an (occupation omitted). The Mother has not re-partnered.
The Father was born on (omitted) 1985 and is aged 29 years. The Father is employed on a full-time basis as a (occupation omitted) with (employer omitted). The Father has re-partnered and lives with his partner, Ms P in (omitted).
The Mother moved to Australia with her family when she was eight years old and returned to New Zealand with her family when she was eighteen. The Mother returned to Australia the following year to live with her then partner who she subsequently married. Her marriage was short lived and after the breakdown of that relationship she remained in Australia.
The parties commenced a relationship in (omitted) 2007 and started living together in (omitted) 2007. They separated in July 2009 when X was only nine months old.
After separation, X remained in the Mother’s primary care. X did not spend overnight time with the Father until he was approximately two and a half years of age. The Father concedes he was a young Father and he did not feel he had the requisite skills to settle X when he became unsettled for any extended period of time. The Father commenced having regular overnight time with X when he was approximately three and a half years of age.
The Father works for (employer omitted) on a rotating roster. He works thirteen twelve hour shifts in every four weeks. There are three different shifts, 7:00am to 7:00pm, 7:00pm to 7:00am and 3:00pm to 3:00am on Saturday and Sunday and the Father is required to work a combination of the shifts during the roster period. The Father works three shifts on and four shifts off. The four week roster is posted every four weeks, some two weeks prior to the rostered period. There is no pattern or consistency as to the Father’s roster which makes it impossible for X to spend the same day or days with the Father in each week.
Once the Father’s roster is posted, there is very limited capacity to vary his roster.
Once the Father became confident in his parenting of X, the parties were able to agree to X spending one night each week with the Father on a night of the Father’s choosing that fitted with his rotating roster.
The Father would often give the Mother very late notice, sometimes as little as two days as to when he was able to have X spend time with him. The Mother would ensure X spent time with the with Father each week, even on very short notice.
The Mother commenced full time employment as a (occupation omitted) with (employer omitted) in March 2010.
The paternal grandmother and/or paternal aunt cared for X every Tuesday from 7:00am to 6:30pm from when he was six months old until he started school in 2014 whilst the Father and Mother worked.
In June 2012 the Mother purchased a block of land in (omitted) and built a home which she and X moved into in June 2013.
The Mother, X and the Mother’s sister had Christmas dinner with the Father’s family on Christmas Day in 2013. The Mother dropped the Father home and the Father invited she, X and the Mother’s sister in for a drink. After the Mother’s sister and X went to sleep, the Father and the Mother were intimate.
The next morning whilst the parties were in bed and were again becoming intimate, the Father told the Mother they had to stop as he had met someone and their being intimate had been a terrible mistake. The Mother was understandably very upset and hurt by this.
After their intimacy, it is the Mother’s evidence she asked the Father not to introduce X to his new girlfriend for six months on the basis she was concerned, given she and the Father’s recent intimacy, that the Father’s new relationship may not last. It is the Mother’s evidence that the Father agreed to this.
The Father agrees that the Mother did ask him not to introduce X to his new girlfriend (now his de facto partner Ms P) for six months but that he at no time agreed to this.
The Father introduced X to Ms P in March 2014. The Mother was extremely upset that the Father had done this in light of what she believed to be their agreement he would not do this for six months.
Despite this unhappiness, the parties continued to be able to arrange for X to spend one night a week with the Father. As X had started school in 2014, the parties also agreed that X would spend three days each week in the term holidays with the Father, ideally on the basis that such time coincided with the Father’s days off.
On 17 April 2014 the Mother attended at the paternal grandmother’s home to collect X. The paternal grandmother and paternal aunt had been looking after X for the Father during the school holidays as he was working.
The Mother told the paternal grandmother and paternal aunt that she and the Father had been intimate on Christmas night and the Father had therefore been unfaithful to Ms P.
The paternal grandmother and paternal aunt did not believe the Mother and an argument ensued. The Mother became upset and went to leave with X. The paternal grandmother, believing the Mother was too upset to drive, would not let the Mother take X with her. This further upset the Mother. She called the police who arrived and settled the situation. The mother then left with X.
Since this incident the relationship between the Mother and paternal extended family has completely broken down and X now only sees the extended paternal family when he spends time with the Father.
In November 2013 the Mother’s position at (employer omitted) substantially changed as a new (employee omitted) was hired who took over much of the Mother’s responsibilities. Over the next twelve months, (employer omitted) was unable to find a suitable position for the Mother and it was agreed the Mother’s role should be made redundant and she would cease working for (employer omitted) in December 2014.
The Mother does not as yet have formal qualifications as an (occupation omitted). She is studying part time to obtain her (omitted) degree and has ambitions to complete the three year post-graduate qualifications to become either a (omitted) or (omitted).
In July 2014, the Mother raised with the Father the possibility of relocating with X to the (country omitted) where her close friend Mr L had moved. The Father strongly opposed the Mother relocating to the (country omitted).
At the Mother’s behest in September 2014 the parties attended mediation in (omitted). The Mother again raised the question of relocation to the (country omitted) to which the Father strongly maintained his opposition.
On 14 September 2014 the Mother wrote to the Father. In her correspondence she put forward a proposal that as an “interim proposal” she and X travel between December 2014 and February 2015, initially to New Zealand to visit the Mother’s family and then to the (country omitted) so she could “assess the benefits and disadvantages of relocation in the long term”.
The Father rejected this proposal by the Mother.
On 7 November 2014 the Mother filed her Initiating Application seeking orders that she be permitted to relocate to New Zealand with X.
On 19 November 2014 interim orders were made by consent for X to live with the Mother and spend time with the Father one night each week as agreed between the parties with the Father to give the Mother reasonable notice of his available days.
The orders also provided for the Mother and X to travel to New Zealand between 17 December 2014 and 12 January 2015 (which was extended by two weeks by agreement between the parties).
Since 2010, the Mother and X have spent two to three weeks every year in New Zealand during the long summer vacation by agreement between the parties. These visits have been on the basis that X spends Christmas in Australia one year and Christmas in New Zealand in the other.
The Mother was made redundant by (employer omitted) in December 2014. She received a redundancy payment of $10,000. The Mother obtained temporary employment in February 2015 with (employer omitted) in (omitted). This position is due to finish in July 2015.
X has been spending time with the Father in accordance with the interim orders. At the behest of the Mother, X spent two nights with the Father and one night with the paternal aunt, a total of three consecutive nights in each of the weeks of the first term school holidays.
The Evidence
The Mother relies on her Affidavit of Evidence in Chief sworn 30 April 2015. The Mother also gave viva voce evidence at the final hearing.
The Mother’s Evidence
The Mother is seeking Orders that she be permitted to relocate to New Zealand with the parties’ son X.
It is the Mother’s proposal that if permitted to relocate to New Zealand that X spend time and communicate with the Father as follows:
a)By Skype no less than a weekly basis and if not spending time with the Father on special occasions including Easter Sunday, Father’s Day, Christmas Day, X’s birthday and the Father’s birthday;
b)In Australia for three periods of one week duration each as follows, provided that the Father will be in substantive attendance:
i)during the New Zealand end of term 3 2015 school holiday period;
ii)during the 2015/2016 summer school holiday period with such time to include Christmas Day;
iii)during the New Zealand end of term 1 2016 school holiday period.
c)Commencing in the New Zealand term 3 school holidays in 2016, thereafter in Australia for periods of 2 weeks duration as follows, provided that the Father will be in substantive attendance:
i)During the end of term 3 New Zealand school holiday period in 2016 and each even numbered year thereafter;
ii)During the end of the term 2 school holiday period in 2017 and each odd numbered year thereafter;
iii)During the end of the term 1 school holidays period in 2018 and each even numbered year thereafter;
iv)Every year during the summary school holiday period to include Christmas Day and New Year’s Day in every odd numbered year;
v)Liberally by agreement should the Father travel to (omitted), New Zealand upon giving the Mother no less than 3 weeks notice of his dates of travel;
vi)Liberally by agreement should the Mother travel with X to the (omitted) or Melbourne region in Australia and the Mother will give the Father no less than 3 weeks notice of the dates of any such travel;
vii)As otherwise agreed in writing from time to time.
The Mother proposes that the parties share the cost of X’s travel to spend time with the Father in Australia and that any accompanying adult pay their own costs.
The Mother also proposes that X spend time with the Father liberally by agreement should the Father travel to (omitted), upon the Father giving the Mother no less than three weeks notice of his intention to do so.
The Mother also proposes that the parties have equal shared parental responsibility.
In the event the relocation is not allowed, the Mother is seeking Orders that she be permitted to relocate X’s place of residence to within the greater Melbourne area and that X spend time with the Father each alternate weekend from after school Friday to 5:00pm Sunday, Wednesday night for dinner, one week in each of the term holidays, special occasions and each alternate Christmas. She also sees orders that she be permitted to travel to New Zealand with X for four weeks each year.
It is the Mother’s evidence that she wishes to relocate to (omitted) in New Zealand as this is where her parents and members of the extended maternal family live.
It is the Mother’s evidence that if permitted to relocate to (omitted), she and X will initially live with her parents until such time as she is settled, has employment and is in a position to set she and X up independently.
It is the Mother’s evidence that her parents are very supportive of her application to relocate and are more than happy for she and X to live with them for as long as they need to.
It is the Mother’s evidence that she and X have visited her parents in New Zealand every Christmas since 2010 and that X and the maternal grandparents have a very close and loving relationship.
It is the Mother’s evidence that she is very isolated living in the (omitted) region and that she has very few friends and very little support in relation to her care of X. This is particularly so since the breakdown of her relationship with the paternal grandmother and particularly the paternal aunt.
It is the Mother’s evidence that she has always felt bullied and criticised by the paternal family. She has always felt that she was at the beck and call of the Father, having to accommodate his demands for when he was available to see X and never being able to rely on him to provide support for X to enable her to have the luxury of being able to plan social outing activities on the understanding that the Father would be able to look after X.
It is the Mother’s evidence that the paternal grandmother in particular has been very critical of her parenting and that when she collected X from the paternal grandmother’s home each week after the paternal grandmother had cared for X before he started school, she would be subject to a lecture about her inadequate parenting and particularly her choice of a vegetarian diet for X.
It is the Mother’s evidence that she is no longer able to afford the mortgage on her home in (omitted). When she was employed by (employer omitted) she was earning approximately $75,000 a year which enabled her to meet the monthly mortgage payments of $1,933.00.
It is the Mother’s evidence that her current position at (employer omitted) only pays $45,000 per annum. When she was made redundant the Mother was able to negotiate with her bank that for a six month period her mortgage payment would be $1,000 per month. This agreement expires at the end of May.
It is the Mother’s evidence that she will have to sell the (omitted) property whatever the outcome of this case.
It is the Mother’s evidence that she has made application for nearly 100 positions in (omitted) since being made redundant and that she has only been successful in finding her current temporary position. The Mother provided the Court with proof of having made her many applications for employment in the (omitted) area.
It is for this reason that the Mother is seeking permission to move to the greater Melbourne area in the event that relocation is not permitted. It is her evidence that she believes that she will have a better opportunity to find employment in the Melbourne area at a level of income more commensurate with that which she was being paid at (employer omitted).
Whilst the position at (employer omitted) was in Melbourne and the Mother was able to commute from her home in (omitted), it is the Mother’s evidence that now that X is at school and given the lack of regularity in relation to the time that the Father spends with X, it is not feasible for her to continue to commute between (omitted) and Melbourne as this requires X being in before and after school care for very long hours.
It is the Mother’s evidence that if permitted to relocate to (omitted), the cost of living is considerably lower than that in (omitted) or Melbourne and she believes she will be able to re-establish herself much more readily.
It is the Mother’s evidence that she has made some enquiries about employment prospects in (omitted) but has not made any application for employment and is not intending to do so until such time as the question of relocation is determined.
It is her evidence, however, that her preliminary enquiries have led her to believe that she will be able to obtain employment in (omitted) without too much difficulty.
It is the Mother’s evidence that she intends to continue her (omitted) studies, whether in Australia or New Zealand with the aim of qualifying as a (qualifications omitted) or (qualifications omitted) which will greatly enhance her employment prospects and earning capacity.
It is the Mother’s evidence that the Father and X have a very close and loving relationship and that X genuinely enjoys the time that he spends with his Father.
The Mother acknowledges that in the event relocation is allowed, the relationship between X and the Father will be impacted given he will not be able to spend regular weekly time with the Father.
It is the Mother’s belief however that if relocation is allowed X will be able to maintain a meaningful and loving relationship with his Father by spending time with him as proposed by her, by the Father visiting New Zealand to spend time with X and by X having regular Skype and telephone communication with the Father.
It is the Mother’s evidence that when they were recently in New Zealand for six weeks over the long summer vacation, X communicated weekly with his Father by Skype and that he and the Father were happily able to speak to each other and fully engage via this communication.
The Mother concedes that one of the reasons that she wishes to relocate to New Zealand is to get away from the Father given the breakdown in their previously co-operative post separation parenting agreement following the circumstances that arose over Christmas 2013 and her loss of trust in the Father when he introduced X to his now partner after she believed he had agreed not to do so for a period of six months.
It is the Mother’s evidence that this was in part behind her thinking when she initially proposed to the Father that she and X relocate to the (country omitted). It is the Mother’s evidence, however, that when she fully considered her circumstances, and that of X, she realised that the best way forward for she and X would be to relocate to New Zealand to be with her family who would be able to provide her with the emotional and practical support that she does not have in Australia as well as providing her with some financial relief while she got herself back on her feet.
In relation to the Father’s evidence that she has a poor relationship with her parents, it is the Mother’s evidence that she has always had a very good relationship with her mother. She agreed that she had difficulties in her relationship with her Father during her childhood.
It is the Mother’s evidence that during her pregnancy with X, she made the decision to address the issues around her relationship with her Father and that she undertook weekly counselling for a period of six months to address these issues. She found this counselling extremely beneficial. It is the Mother’s evidence that as a result of this counselling her relationship with her father has been repaired and that he and her mother have been incredibly supportive of her both emotionally and financially during her pregnancy and since X was born.
In relation to the concerns of the Father as to the maternal grandmother’s mental health, it is the Mother’s evidence that her Mother has had mental health issues and was hospitalised approximately four years ago. It is the Mother’s evidence however that her Mother has not suffered any further mental health issues since that time and that her mother continues to see her psychiatrist and counsellor to ensure that she stays on top of her mental health issues.
The Mother denies that her application to relocate to New Zealand is a stepping stone to relocate she and X relocating to the (country omitted). The Mother proposes in her Outline of Case that orders be made that she be restrained from relocating from New Zealand other than back to Australia and indicated through her counsel that she was prepared to take the necessary steps to have any orders made by this Court registered in New Zealand to ensure her compliance with any orders made.
The Father’s Evidence
The Father relies on his Affidavit sworn 28 April 2015. The Father also gave viva voce evidence at the final hearing.
The Father also relies on the affidavits of his Mother, Ms A sworn 28 April 2015 and of his partner Ms P sworn 28 April 2015. Ms P was not required for cross examination at the final hearing.
The Father is strongly opposed to the Mother’s application to relocate with X to (omitted) and seeks that she be restrained from relocating interstate or internationally with him.
It is the Father’s proposal that X live with each of the parties on a week about basis including during the term school holidays and that the Mother be at liberty to travel to New Zealand with X during the long summer vacation for a period of up to four weeks and that X have Christmas in New Zealand one year and in Australia the other.
It is the Father’s evidence that if X and the Mother are permitted to relocate to New Zealand, the close and loving relationship that he and X currently have will not be able to be maintained if, in accordance with the Mother’s proposal X only sees him three times a year and otherwise their only communication is electronically through Skype and telephone.
It is the Father’s further evidence that he does not believe that the Mother will facilitate X spending time with him upon relocation and raises concerns that she will not comply with the Orders to bring X to Australia to see him.
The Father also raises concerns about the impact on X’s relationship with the extended paternal family if permitted to relocate.
The Father also questions the level of support that the maternal grandparents will provide the Mother, given that during his relationship with the Mother she had a very strained relationship with both her Mother and Father.
The Father also raises concerns about the maternal grandmother’s mental health as it is his understanding that she has had periods of hospitalisation as a result of her mental health issues.
Finally, the Father expresses a real concern that the Mother’s application to relocate to New Zealand, will be used by the Mother as a stepping stone to abscond with X to reside in another country other than Australia or New Zealand particularly given that the Mother initially raised with him her desire to relocate to the (country omitted).
The Father was cross examined at length in relation to his current employment and how his rotating roster actually works. It became apparent that there is absolutely no pattern to the Father’s work schedule and that any Orders for the time that X spends with him could not follow the “usual” pattern of alternate weekends or set periods of time in each fortnight. This is perhaps best exemplified by the Father’s evidence that for the coming three months he will have time off each weekend but that in any given year he also works fifteen weekends in a row.
The Father was questioned about his proposal that if relocation is not permitted, X live week about with each of the parties given the Father’s work commitments. It is the Father’s evidence that if he was not available because of his work commitments to care for X, his Mother, sister and partner would all be able to look after X in his absence.
Whilst the Father gave evidence that he did not believe the Mother had facilitated his relationship with X, it is his evidence that until X was approximately two and a half years of age he did not have the confidence in his parenting capacity to have X overnight given that he was a young and inexperienced father.
It is the Father’s further evidence that the Mother has ensured that X spends a night with him in every week to fit around his working commitments and that she has done so even on those occasions when he has only given her two days’ notice of his availability.
It is the Father’s further evidence that despite the breakdown in their cooperative parenting relationship at the beginning of 2014, the Mother has continued to ensure that X spends a night with him in every week, has facilitated X having up to three days with him or the extended paternal family in each of the term school holidays and that she did so in the absence of any Court orders.
The Father is very critical of the Mother’s parenting and in particular alleges that her house is dirty and untidy, that X is undernourished and that the Mother is too emotionally dependent upon X for her own happiness and well-being.
The Father was asked, given these concerns, whether he had spoken to X’s school or received complaints from the school about X’s presentation or whether he had taken X to his own doctor for examination, particularly in relation to this concerns that X is undernourished. The Father indicated that he had not had complaints from the school or ever taken X to his doctor to confirm his concerns X is undernourished.
Counsel for the Mother asked the Father that given the Mother works full time, looks after X with assistance from the Father only once a week and that he has not challenged the Mother having X’s primary care, did he consider that she has been a good Mother to X. The Father somewhat begrudgingly indicated that “she does ok, for a single mother she does well.”
The Father was asked whether since separation he had ever taken time off work including taking annual leave to assist in X’s care. The Father indicated he had never done so.
It is the Father’s evidence that X has a very good relationship with his partner, Ms P as well as a close and loving relationship with the paternal grandmother, the paternal aunt and other members of this extended paternal family.
The Father was questioned in relation to whether he would move to New Zealand in the event relocation was allowed. It was his very clear and strong evidence that he would not move to New Zealand.
The Mother’s proposal for the time that X would spend with the Father in Australia if permitted to relocate, whilst somewhat convoluted basically provides for X to always spend time with the Father in Australia in the long summer vacation and the July term holidays and for him to spend time in the first term holidays in one year so that the parties can share Easter with X and time in the third term holidays in the alternate year so that they each have an opportunity to spend X’s birthday with him.
When the Mother’s proposal is mapped out, it results in X only spending time with his Father every second year in the long vacation and the July holidays. This means that in every second year, X would go six months between visits with his Father.
It is the Father’s proposal that if relocation is allowed that X spend time with him for ten days in each of the term holidays as well as four weeks in the long summer vacation.
The Father was asked that if the Mother’s proposal was the one preferred by the Court, would he ensure that he travelled to New Zealand to see X, particularly in those years where there would be a six month gap between X’s visit to Australia. It is the Father’s evidence that he would do everything possible to ensure that he did so.
In relation to the Father’s proposal for the time that X spends with him in the event of relocation, the Father was asked how he would be available to spend that time with X given he only gets four weeks annual leave a year and given his work roster.
It is the Father’s evidence that he would do everything to maximise his time with X and that if he had to work during some of the period X was in Australia, his partner, mother, sister and extended family would be available to assist in X’s care and to spend time with him.
The Father was also questioned in relation to how he would be able to spend time with X if the Mother remains in Australia but relocates to Melbourne, particularly if such relocation was to the northern or eastern suburbs.
The Father agreed that alternate weekends would not be viable given his work roster. The Father also agreed that the current arrangements whereby he has X overnight on an evening that fits with his work roster would also not be viable given the distance between where he lives in (omitted) and Melbourne.
It is the Father’s evidence that he would not relocate from (omitted) to Melbourne if X and the Mother move to Melbourne as Ms P’s employment is in (omitted), Ms P’s home where they live is in (omitted) and he and Ms P’s extended family and social network are all (omitted) based.
Ms A
Ms A is the paternal grandmother. Ms A swore an affidavit on 28 April 2015 and gave viva voce evidence at the final hearing.
In her affidavit and in her viva voce evidence, Ms A was unremittingly critical of the Mother.
In paragraph 8 of her affidavit, Ms A describes the Mother in the following terms:
Ms Robson has poor grooming, a lack of social skills, a total disregard for care of her belongings, including her car.
In paragraph 21 Ms A deposes as follows:
I was disturbed by the lack of cleanliness I witnessed in Ms Robson and Mr Paben’s unit. Ms Robson has always had an abhorrence of house work, dishwashing and cleaning her car. Ms Robson’s car is a repository for clothes, take away containers and multiple lunch boxes belonging to X. I know this because I have seen how messy it is…
Ms A was cross examined in relation to her observation of the parties’ home when they were together. It is her evidence that she had only once attended the parties’ home but when she did, she was “horrified.”
It was put to Ms A that as both the Mother and Father were living in the home, it was the responsibility of both parties to keep their home clean and therefore both parties were at fault. Ms A rejected this proposal on the basis the Father was working. It is Ms A’s evidence that she had been a mother of two young children under two and that she had managed to keep her house clean whilst her husband was working.
Ms A is an (occupation omitted) and as such has very strong views as to the appropriate diet for a young child. She expresses real concern about the Mother’s decision to become vegetarian and insist that X also be vegetarian. It is Ms A’s evidence that she discussed this decision at length with the Mother and made it quite clear to her that she did not support her decision to restrict X’s meat intake.
It is Ms A’s evidence that when the Mother collected X from her place each week after she had his care for the day, she would outline in detail what X had eaten and what activities they had undertaken. Ms A did not concede that the Mother may have perceived this as her being critical of her parenting of X or the diet that she chose for him.
Ms A was asked how the Mother would have felt reading
Ms A’s affidavit. It is Ms A’s evidence that the Mother may well have felt angry, upset and disappointed. She then however made the comment that maybe the Mother would realise that her parenting had not had been as good as it could be and that ultimately she was sad that her grandson is not getting the best care that he can.
Ms A was asked whether she had anything positive she could say about the Mother as a person and as a parent. It is Ms A’s response that she thinks the Mother is a very loving Mother and that X adores her. When asked if there was anything else positive she could say about the Mother, her response was:
“Sorry – I am just struggling at the moment.”
Dr W
Dr W is a consultant psychiatrist who conducted a psychiatric assessment of the Mother which is contained in his report dated 21 April 2015 and is before the Court by way of his affidavit sworn 11 May 2015. Dr W was not required by either party for cross examination.
In his report at page 11 under the heading ‘Diagnosis’ Dr W states:
Upon the history available, Ms Robson does not appear to be currently suffering from a psychiatric illness.
As stated above, she appears to be suffering from normal stress symptoms and grief in the context of significant family law matters, relationship conflict, a dilemma regarding geographical relocation, and longstanding unresolved, and at times, problematic personality issues.
Also on page 11 under the heading ‘Prognosis’ Dr W states:
Upon the history available, Ms Robson would appear to be at some risk of future stress and grief symptoms, in the context of unresolved social and psychological issues. There may be an increased risk of depressive illness, given her vulnerabilities and family psychiatric history.
However, Ms Robson appears to be functioning reasonably well, despite her current social and psychological issues. Furthermore, whilst geographical relocation might provide her with increased social support and a reduction in some of her grief, her longstanding and unresolved family and psychological issues will remain potential vulnerabilities, predisposing her to depressive illness regardless of her geographical location. And from a purely psychiatric perspective, a need for geographical relocation would not appear to be as great as a need for further internal psychological development.
In particular, Ms Robson’s potential to unreasonably burden her son with her own psychological needs would be an issue regardless of where she lives, and will necessitate further counselling, exploration and understanding.
It is recommended that Ms Robson continue to engage in counselling to enable her to more fully appreciate the nature of her behaviours and the likelihood of them impacting upon her son. Whilst in the short term she might find this difficult and confronting, Ms Robson would appear to have significant psychological strengths, as well as social supports, even if she were to remain in Australia.
Finally, on page 12 and 13 under the heading ‘Conclusions’ Dr W states:
The Honourable Court will hear the totality of the evidence and decide the issues involved.
The examiner has not seen X, and is unable to fully comment upon the dynamics of the relationships between him and his mother.
Notwithstanding.
1. The examiner agrees with the Family Consultant, Ms J, that there must be concerns regarding Ms Robson’s care of her son. Whilst this examiner is unable to elicit the factual truth regarding the conflicting versions about Ms Robson’s physical care of her son, she does appear to be at risk of holding unrealistic expectations about his abilities, including decision making, which is her responsibility. These issues appear to be related, to a significant degree, to Ms Robson’s longstanding psychological issues.
2. However, psychiatric illness would not appear to be a significant factor with regard to her ability to provide a reasonable level of positive parenting and have her son live with her.
3. It appears likely that Ms Robson would receive psychological support were she to relocate to New Zealand. However, this may not be as straightforward and ‘curative’ as she reports or believes, given her past history with her father, as well as her mother’s ongoing psychiatric disorder. Furthermore, she would lose a significant amount of support from Ms A, even though she finds it difficult to perceive any of his actions as being supportive.
4. The examiner also agrees with Family Consultant, Ms J, that any psychological issues with X himself will have to overcome, may likely be generated by ongoing and unresolved conflict between his parents, as well as any ongoing unresolved psychological issues of his mother, as opposed to geographical issues.
5. This examiner supports Ms J’s view that Ms Robson and Ms A attend a child-focussed counselling and a post separation parenting program.
Ms J
Ms J is a family consultant who prepared a family report in this matter dated 29 March 2015. Her report was placed before the Court by way of affidavit sworn 14 April 2015. Ms J also gave viva voce evidence at the final hearing.
In her family report at paragraph 56, Ms J made the following observations in relation to X’s relationship with both parties as well as Ms P:
From my observations, X appeared to have warm and close relationships with Ms Robson and with Ms A as well as a warm and accepting relationship with Ms M. No concerns arose from the observation sessions about the nature of these relationships.
In paragraph 57 of her report, Ms J raised the following concern in relation to the Mother:
A concern arose from Ms Robson’s interview and X’s interview as to whether X may take some responsibility for Ms Robson’s emotional well-being. Ms Robson was quite anxious throughout her interview and said that she suffers anxiety and depression. Ms Robson has clearly not dealt with issues in her life she perceived as traumatic which is not a criticism but it would be of concern that X would be very aware of Ms Robson’s delicate emotional state. This may affect X to the extent he feels some responsibility to take care of her emotional well-being rather than the other way around. Ms Robson attends counselling but said that she does not take medication for her depression or anxiety as her doctor was of the view that counselling would assist her. I note that Ms Robson started attending her most recent counsellor on 24 November 2014.
In paragraph 61 of her report, Ms J states that X is of an age where he is cognitively and emotionally able to retain his memories of the Father and that he would be able to maintain his relationship with the Father if he relocated to New Zealand providing the Mother facilitated this relationship. She also notes that X is of an age where he would be able to communicate effectively with the Father via Skype or telephone.
In paragraph 62 of her report, Ms J notes that the Father is X’s same gender role model and it is from the Father he would learn about being a male. This would be particularly critical during X’s adolescence. Ms J also notes that the Father provides a stable role model as a parent whereas currently the Mother suffers from anxiety and depression and she therefore may not be providing such a stable role model.
In paragraph 66 of her report Ms J comments on the Father’s proposal that X’s living arrangements immediately move to a shared care arrangement. It is Ms J’s evidence an immediate move to shared care would be too quick for X to emotionally deal with and that there should be a gradual increase in the time that X spends with the Father. Ms J suggests that X immediately start spending two nights in each week with the Father, this time to include the weekends that the Father has off. Ms J also proposes X spend half all school term holidays with the Father and that in the long summer vacation period X spend week about with each of the parties.
Ms J suggests that from 2016, depending on where the Mother lives and where the Father lives it could be an option for X’s time with the Father to increase to three consecutive nights in week one and two consecutive nights in week two. She notes that if the distance between the homes is too far for such an arrangement then the spend time arrangement would need to be adjusted to take into account the distance between the homes.
In her viva voce evidence, Ms J was particularly concerned with the relatively recent desire of the Mother to relocate to New Zealand. Ms J noted that the obvious time for relocation would have been at the breakdown of the relationship not five years on.
Ms J was also very concerned that the Mother’s proposal to relocate to New Zealand on the basis it would give her family support follows closely on her initial proposal to relocate to the (country omitted), where of course there would have been no such family support available. It is Ms J’s evidence that this raises for her the question of how genuine the Mother’s need for family support is and whether the Mother’s proposal to relocate to New Zealand is in fact the final relocation that the Mother is contemplating.
Ms J confirmed in her viva voce evidence that if the Mother and X relocate to New Zealand, X is now of an age where he would be able to maintain his relationship with the Father as long as the Mother continues to support the relationship between X and the Father both practically and emotionally.
Ms J agreed that historically the Mother has ensured that X has a positive relationship with the Father and that there was nothing in the Mother’s evidence that indicated that she would fail to continue to do this into the future.
The Legal Approach
It is the Mother’s application in this matter that she be permitted to relocate to (omitted), New Zealand with the parties’ son X aged six years.
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[1]
[1] At paragraph 31.
Best Interests of the Child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests.
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
Ms J observed that X has a warm and close relationship with both his parents.
The Mother has been X’s primary carer since birth and she has been responsible for the bulk of X’s parenting for the entirety of his life.
As he was a young and inexperienced parent, the Father was not confident enough to start spending overnight time with X until he was two and a half. There was no regular arrangements put in place for overnight time between X and the Father until X was three and a half.
As a result of the Father’s work roster he is unable to commit to any regular pattern of time with X. Whilst the Father alleges the Mother would only let him spend one night a week with X, I am satisfied the Father rarely asked for any more time than this each week.
This means that the Mother has not ever been able to have any genuine respite from her role as X’s primary carer other than the four weeks over the long summer vacation when she and X spent time with the extended maternal family in New Zealand.
To their credit, and particularly the credit of the Mother, X has been able to spend weekly time with his Father since he was three and a half and as such they have a close and loving bond.
It is the evidence of Ms J that X is now at an age that he is cognitively and developmentally able to maintain his meaningful relationship with his Father in the event of relocation as long as that relationship is properly supported by the Mother.
The Father challenges the Mother’s willingness to support his relationship with X. Given the Mother’s commitment to allowing X to spend regular time with his Father in circumstances that have been so erratic and where she has often only been given short notice, I am satisfied that she is a parent who will facilitate the relationship between X and the Father . I am also satisfied the Mother understands the importance to X of maintaining his relationship with his Father.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
The Father and paternal grandmother raise concerns about the Mother’s care of X and question her cleanliness, tidiness and diet.
The paternal grandmother in particular was most scathing of the Mother’s parenting and it is quite apparent that she has made her views in this regard well known to the mother for many years.
Whilst the Father claims that X is malnourished, Ms J observed X to be a healthy and happy little boy and it would appear there have been no complaints at all raised by X’s school in this regard.
It is the Father’s evidence that he took X to the doctor on one occasion to have a cut on his head stitched but gave no evidence that his doctor on that occasion raised any concerns about X’s general health.
Ms J in her family report raises concerns that X is being required to take on the responsibility for the Mother’s emotional well-being rather than the other way around and also raises concerns about the Mother’s parenting capacity in the event her current anxiety and depression were to worsen.
Ms J and Dr W also raise concerns that the Mother’s expectation that relocation will resolve all her current anxiety and depression is misguided and that the Mother needs to address long standing and underlying issues in order for these issues to be resolved.
However, Ms J in her Family Report states at paragraph 59 that both parties are each capable of meeting the intellectual needs and the day to day emotional needs of X.
Dr W in his psychiatric assessment of the Mother states that the Mother presented as a reasonably pleasant and plausible woman who described caring and committed attitudes with regard to parenting responsibilities. Dr W diagnoses the Mother as having no major cognitive deficits as well as no major signs of psychiatric illness.
Dr W further stated that psychiatric illness would not appear to be a significant factor with regard to the Mother’s ability to provide a reasonable level of positive parenting and have her son live with her.
In the circumstances I am satisfied that X is not at risk of abuse or neglect or emotional or physical harm in the care of either of his parents.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(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.
When speaking to Ms J for the preparation of the family report, Ms J asked X how he would feel if it was decided that he and the Mother can live in New Zealand.
At paragraph 46 Ms J reports that X replied as follows:
“...very happy ‘cos it was actually my choice to live in New Zealand. Mum gave me the choice where I wanted to move and I chose New Zealand.”
In paragraphs 48 to 50 Ms J sets out her further exchange with X on the question of relocation to New Zealand as follows:
48. X was asked if they move to New Zealand would he miss Mr Paben and he said, “Well, I will go on holidays to Australia to see my dad and I’ll also Skype him too cos’ I’ve got my own Skype account and email.” X was asked again if he would miss Mr Paben if he only just saw him in the holidays and he said, “Not really ‘cos I only see him once a week.”
49. X explained to me that they would stay with the grandparents until they get a new house and that on the holidays he would get to stay with his grandmother and his dad.
50. X was asked how he gets along with his grandparents and he said, “Quite good.” X said, “When I’m in New Zealand I Skype dad and grandma. When I’m in Australia I Skype grandma and granddad.”
In paragraph 58 of her family report, Ms J further expands upon her exchange with X on the question of relocation as follows:
58. X explained that Ms Robson gave him the choice as to where they could move to and he chose New Zealand. After X explained this when I asked him how he would feel if it was decided that he lived in Melbourne, X was clear that he would be happy living in New Zealand or Melbourne. At age six X does not have the maturity or the experience of life to be able to make an informed view about where he would like to live. New Zealand has been a holiday place for X so it would be expected he would have happy memories of being there. It is my view that X does not have the maturity to make an informed view so other factors need to be taken into account.
Ms J quite properly notes that at the age of six X does not have the requisite maturity to fully understand the implications of relocation to New Zealand. I agree with Ms J that X is far too young for his views on relocation to be given any great weight and that, as Ms J states, “..other factors will need to be taken into account when determining whether it is X’s best interest to relocate to New Zealand with his Mother.”
Section 60CC(3)(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).
X has a close and loving relationship with both the Mother and the Father.
As has been set out in this judgment, the Mother has been X’s primary carer since birth and it is she who has borne the brunt of X’s care since the parties’ separation when X was only nine months of age.
While there is considerable criticism directed at the Mother by the Father and the paternal grandmother in particular and to some degree by Ms J and Dr W, X is a healthy, well adjusted, intelligent and happy child who is progressing well at school, is socially confident and is generally meeting all his milestones.
This reflects the positive parenting of both the parties but particularly that of the Mother as his primary carer.
X has a close and loving relationship with the Father. This is a direct result of him spending regular weekly time with the Father, such time having been facilitated by the parties being able to cooperatively put in place arrangements for that time to take place around the Father’s very difficult work roster
X also has a very positive relationship with the Father’s partner Ms P and with the extended paternal family, particularly his paternal grandmother and aunt who he spent regular weekly time with up until he started school in 2014.
It is sad that the relationship between the Mother and the extended paternal family has broken down since their altercation in April 2014, though X continues to spend regular time with his grandmother and aunt when he is spending time with his Father.
X also has a very good relationship with the extended maternal family as he has visited them every year for up to four weeks since he was a baby and speaks to them via Skype regularly.
Section 60CC(3)(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;
(iii) to communicate with the child.
As has been set out in this judgment, the Father has spent regular weekly time with X since separation and has continued to do so even with the breakdown in what was a relatively co-operative parenting relationship after the incidents of early 2014.
Since the breakdown of that relationship the parties have almost no capacity to communicate co-operatively.
Ms J in her family report makes it very clear that X’s overall emotional needs are not going to be met if he is constantly caught in the middle of the parental conflict. Ms J states at paragraph 59 of her report that sooner or later X will suffer as a result of the parties conflict and she therefore strongly recommends that the parties attend child focused counselling to address those issues and that their counsellor be provided with a copy of her family report.
The Mother, when giving her viva voce evidence, expressed a wish for the parties to put their recent difficulties behind them and a desire for them to return to their previous co-operative parenting relationship.
Section 60CC (3)(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.
Both parties have properly maintained X throughout his life.
Whilst the Mother makes complaint that when the Father’s level of child support has been increased by the Child Support Agency, the Father has been somewhat tardy in starting to pay the increased amount, she makes no complaint that the Father has not paid child support for X since separation or that he will not continue to do so into the future.
Section 60CC(3)(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.
In the event that X is permitted to relocate to New Zealand he will not be able to spend regular weekly time with his Father or his extended paternal family. The Mother’s proposal in the event of relocation would see X spending time with the Father in Australia during three of the four school holidays in each year as well as inviting the Father to spend time with X in New Zealand upon him giving her 28 days’ notice of his intention to travel to New Zealand.
The Mother also proposes that there be regular Skype and telephone communication between X and the Father, something that he is very comfortable with doing, having used Skype to communicate with the Father and paternal grandmother when he has been visiting the maternal family in New Zealand and this being the method by which he keeps in touch with the extended maternal family when he is living in Australia with his Mother.
It is the Father’s evidence that he believes that if X is permitted to relocate to New Zealand, his current close and loving relationship with X will be negatively impacted because of the loss of regular weekly time between them.
It is also the Father’s evidence that he does not believe that the Mother will facilitate X’s relationship with him if she relocates to New Zealand and that in fact once in New Zealand, she may relocate even further away which will mean that there will be no relationship between him and X at all.
It is the evidence of Ms J that X is of an age where he is cognitively and emotionally able to retain his memories of the Father and that he would be able to maintain his relationship with his Father if allowed to relocate, provided the Mother facilitates this relationship.
It is Ms J’s evidence that she does have a concern with the Mother’s proposal for the time X spends with the Father in the event of relocation in that it would mean that in every second year X would go six months between visits with his Father. Ms J expressed the view that this was too long a period for X to go without face-to-face interaction with his Father.
Ms J was also concerned about the Father’s proposal that X spend ten days in each of the term holidays as well as four weeks in the long summer vacation in Australia if the Father would not be in substantial attendance for most of that time. Ms J expressed the view that X would be very disappointed to travel to Australia to spend time with his Father and to then have his Father working for a large portion of that time.
Section 60CC (3)(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.
If the Mother is permitted to relocate to New Zealand with X then quite clearly X’s ability to spend anything other than school holiday time with his Father in Australia is totally impracticable.
Travel between New Zealand and Australia is not arduous and is relatively inexpensive.
It is the Mother’s evidence that there are direct flights between (omitted) or (omitted) to Melbourne although no direct flights between (omitted) and Melbourne. She has made enquiries as to the costs of return air fares and they are not prohibitive.
It is the Mother’s evidence she has family in (omitted) who she could stay with if she were to take X to (omitted) to catch a direct flight.
There was considerable cross-examination of the Mother as to whether she is proposing that X fly as unaccompanied minor between New Zealand and Australia in order to spend time with the Father.
Whilst initially the Mother appeared to be proposing that six year old X would be able to manage unaccompanied international travel, I am satisfied that the Mother is proposing that she would accompany X on the flights to Australia until such time as she and the Father were both satisfied that he could manage these trips on an unaccompanied basis.
If the Mother is not permitted to relocate to New Zealand it is her evidence that it is not possible for her to remain living in the (omitted) area.
In December 2014 the Mother was made redundant from the position she had held since 2010 for which she was paid over $70,000 a year. It is her evidence that she has been unable to obtain any permanent employment in the (omitted) area despite making nearly one hundred applications in that region. The only job she has been able to obtain is a casual position until July this year and this position only pays $45,000 a year. Her mortgage is currently $1,933 a month and she cannot meet that mortgage payment on that level of income.
It is the Mother’s evidence that whatever the outcome of this case, her home in (omitted) will have to be sold. Upon its sale the Mother is seeking to move to Melbourne as she believes she has better prospects for employment and at a better salary in Melbourne than is available in (omitted). It is the Mother’s evidence that if living in Melbourne she will be able to work full time and not have to commute between (omitted) and Melbourne for employment.
It is the Mother’s proposal that if living in Melbourne, X spend alternate weekends with the Father, a night during the week for a meal as well as half holidays.
The practical difficulty with the Mother’s proposal for the time X spends with the Father if she and X are living in Melbourne is that the Father’s roster is such that he will not be available to spend time with X each alternate weekend as for much of the year he will be working on the weekends. It is also unlikely that he will be able to spend time with X during the week because of the distance between Melbourne and (omitted).
It is the Father’s evidence that he will continue to live in (omitted) as his partner Ms P is employed in (omitted), Ms P’s home where they live is in (omitted) and he and Ms P’s social network and extended families are all (omitted) based.
The reality therefore is that even if relocation is not permitted, there are considerable practical difficulties in putting in place arrangements for X to spend the regular time with the father as he currently does unless the Mother and X remain living within the (omitted) area.
Section 60CC (3) (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.
I am satisfied that both parties have and will continue to meet the emotional and intellectual needs of X.
Despite some of the reservations contained in her family report about the Mother’s capacity to meet X’s emotional needs because of her ongoing issues with depression and anxiety, it Ms J’s view that both parties are capable of meeting the intellectual needs and day to day emotional needs of X.
Section 60CC (3)(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
The Mother was born in New Zealand and is proposing a return to New Zealand.
However, the Mother has lived twenty of her twenty-eight years in Australia including all of her adult life.
The Mother’s expressed desire to return to New Zealand is primarily related to wanting the support of her family rather than any genuine need to return to the country of her birth.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Both parties in this matter fulfil their responsibilities as parents to X.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
Section 60CC(3)(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:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
Not Applicable
Section 60CC (3)(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
Until the Mother filed her application seeking to relocate to New Zealand, these parties had for over five years been able to put in place arrangements by agreement for X’s living arrangements.
Whilst the Father complains that the Mother would not allow him to spend more than one night with X other than during school holidays, it is the Mother’s evidence that the Father never asked for more than one night with X because of his work commitments. On this issue I am more persuaded by the Mother’s evidence than that of the Father.
Be that as it may, the reality is that the parties were able to put in place arrangements for X’s living arrangements without the necessity for recourse to the courts and I am of the view that that would have continued into the future but for the Mother’s application to relocate.
It is hoped that with the resolution of the relocation issue, the necessity for further litigation will not arise for these parties in the future.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
Given the Mother’s evidence of her intention to initially live with her parents in (omitted) if permitted to relocate, her further evidence of their support of her application and the concerns raised in relation to her relationship with her parents and father in particular as well as her mother’s mental health, the Court would have been greatly assisted if the maternal grandmother and maternal grandfather had filed affidavits in support of the Mother’s application.
When questioned as to why her parents had not provided affidavits in support of her application, the Mother somewhat disingenuously questioned why they would be relevant given that they don’t live in the country.
This does not mean however that I have made an adverse finding from the absence of affidavits from the maternal grandparents. Rather, I have considered the evidence that is available to the Court.
The Mother is clear in her evidence that she now has a positive relationship with both her mother and her father and that this has been particularly so since the birth of X.
Since 2010 the Mother and X have spent up to four weeks every year with the maternal grandparents in (omitted) and the maternal grandfather in particular has visited the Mother and X in Australia.
X reports to Ms J that he speaks to his maternal grandparents regularly by Skype from Australia and that he gets on with them “quite good.”
It is the Father’s evidence that after spending time with the maternal grandparents, X tells him that he has had a great time.
It is the Father’s evidence that he is aware that there have been occasions when the Mother has left X in her parents’ overnight care in New Zealand while she has gone away visiting family and friends. It is his evidence that he has no concerns about X being left in their care in this way.
I am therefore satisfied that the concerns raised in relation to the maternal grandparents in the event the Mother and X relocate, are without foundation.
Presumption of Equal Shared Parental Responsibility
In this matter both parties propose that an order be made that they have equal shared parental responsibility for X.
Whilst theirs is currently a conflicted relationship with little trust or communication, this is relatively recent and arises particularly from the parties’ Christmas 2013 intimacy and it’s rather unfortunate aftermath.
Prior to that time, it would appear that despite some level of unresolved issues about their relationship, the Mother and Father were able to parent co-operatively. This is evidenced by the very flexible arrangements they were able to put in place that enabled X to spend regular weekly time with the Father.
Whilst there is some dispute about how it came about that they agreed on which school X would attend, the parties have been able to agree on what school that would be.
There was an occasion where X suffered an injury either at school or child care when the Mother was at work in Melbourne. The Father was home and able to be contacted and immediately attend the school to take X to the doctor for treatment.
All of these are examples of where these parties have been able to parent co-operatively and make appropriate decisions in relation to X’s care and welfare.
Ms J also opines that this is a matter where equal shared parental responsibility is appropriate.
In the circumstances, I am satisfied that an order should be made that the parties have equal shared parental responsibility for X.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 15:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.
The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
If the Court is satisfied that it is in X’s best interests to relocate to New Zealand then it will not be reasonably practicable for X to spend equal or significant and substantial time with the Father.
In the event that relocation is not allowed and X remains in (omitted), it is the evidence of Ms J that the Father’s proposal for an immediate shift to equal time would not be something that X could cope with emotionally and her recommendation is that there be a gradual increase in X’s time with the Father, culminating in X spending time with his Father for three nights in one week and two nights in the other.
In the event that the Mother is not permitted to relocate with X but is required from necessity to move to the greater Melbourne metropolitan area, it will not be practicable for X to spend equal time with both his parents as the Father will continue to live in (omitted) and because of the Father’s work roster.
There is also a real question about the practicality of X spending significant and substantial time with the Father in the event the Mother and X are living in the greater Metropolitan Melbourne region because of the difficulties associated with the distance between the Father in (omitted) and the Mother and X in Melbourne and the Father’s very difficult work roster.
Conclusion
This matter relates to the Mother’s application to relocate to (omitted) in New Zealand with the parties’ son X, aged six years.
The Father opposes the Mother’s application to relocate and instead seeks orders that X remain living in Victoria, ideally in the (omitted) region and that he live with each of the parties on a week-about basis.
It is the Mother’s evidence that she wishes to relocate to (omitted) in New Zealand in order to live near her parents and extended maternal family for emotional and practical support they can give her so she can get back on her feet both financially and emotionally.
It is the Mother’s evidence that while she has lived in Australia for most of the last twenty years, a number of factors have occurred in the last twelve months such that she genuinely feels the needs for the close support of her family.
It is the Mother’s evidence that what was once a reasonably co-operative parenting relationship with the Father broke down in late 2013 after she and the Father were intimate on Christmas night. The Father told the Mother that their intimacy was “a big mistake” as he had met someone else.
It is the Mother’s evidence that she asked the Father not to introduce his new partner to X for six months given her concerns about the longevity of the Father’s new relationship given he had been unfaithful to his new partner. It is the Mother’s evidence that the Father had agreed to this. The Father agrees that the Mother asked him not to introduce his new partner to X for six months but he denies he agreed to this.
When the Father introduced X to his new partner in March 2014 in what the Mother saw as a breach of their agreement, their co-operative parenting relationship completely broke down as a result of the Mother’s hurt and loss of trust in the Father.
The Mother had been reliant on the extended paternal family and particularly the paternal grandmother and paternal aunt in providing care for X. In April 2014 the Mother told the paternal grandmother and paternal aunt of what had occurred between she and the Father on Christmas Eve. The paternal grandmother and aunt did not believe the Mother and there was a very heated argument. Since that time there been no communication whatsoever between the extended paternal family and the Mother and they have not been available to the Mother to assist with X’s care.
The Mother was in a well-paid secure job from March 2010. In November 2013 her employer engaged a (employee omitted) who took over many of the Mother’s duties. Her position became untenable and it was agreed between she and her then employer that her position would become redundant by the end of 2014.
The Mother has made application for nearly one hundred jobs in the (omitted) area since being made redundant and has only been successful in finding temporary accommodation for six months at a salary considerably less than that which she was being paid.
The Mother bought land and built her own home in (omitted) in 2007. She has a mortgage commitment of $1,933 a month.
It is the Mother’s evidence that she cannot afford her mortgage on her current salary and is therefore going to have to sell her home.
It is the Mother’s evidence that the combination of all these factors has caused her to form the view that the best way forward for her and therefore for X is for her to relocate to New Zealand where she can have the practical and emotional support of her parents and get herself back on her feet.
The Father is adamantly opposed to the Mother’s application for relocation.
It is his evidence that if the Mother is permitted to relocate, his close and loving relationship with X that is as a result of X spending regular weekly time with him will be dramatically diminished. Further the Father does not believe that the Mother will facilitate a relationship between himself and X in the event of relocation and will find reasons for X not to visit him in Australia in accordance with any orders put in place for X to do so.
It is the Father’s further evidence that he is concerned that the Mother’s application to relocate to New Zealand is nothing more than a “stepping stone” for her to relocate elsewhere in the world, particularly given that when the Mother first raised the question of relocation with him in July 2014, she was seeking to relocate to the (country omitted) and not to New Zealand.
The Father is employed as a (occupation omitted) at (employer omitted). The Father works on a rotating roster which provides for thirteen twelve-hour shifts in every four weeks. There are three different shifts; 7:00am to 7:00pm, 7:00pm to 7:00am and 3:00pm to 3:00am on Friday, Saturday and Sunday. The Father usually works three shifts on and four shifts off. The upshot of this unusual work roster is that there is no pattern to the Father’s working commitments that would enable the Father to be available to spend time with X on the same days in every week or on any particular weekend. This is perhaps best evidenced by the Father’s evidence that in any given year, the Father could have three months of having every weekend off and have fifteen weeks in a row of having no weekends off.
Because of the Father’s work commitments, after separation the parties put in place an arrangement whereby X spends one night with his Father in each week, that night being determined by the Father’s roster and often such time being agreed to only two days before it occurs.
In the event that relocation is permitted, it is the Mother’s proposal that X spend time with his Father in Australia three times each year. Her proposal is that time be for two weeks in the long summer vacation, one week in the mid-year term vacation and in alternating years, one week in the first term holidays and in the other year one week in the third term holidays.
It is the Mother’s evidence that her proposal would allow she and X to have the benefit of an entire term holiday with each other and further would ensure the parties each had the opportunity to spend time with X on X’s birthday and at Easter.
The practical difficulty with the Mother’s proposal is that in every second year X would only spend time with his Father in the Christmas holidays and the mid-year holidays. This means that every second year there would be two six month gaps between X’s time with the Father in Australia.
The Father is seeking orders that in the event relocation is allowed, X spend ten days with him in each of the term holidays and four weeks in the long summer vacation, the latter to be adjusted so that in one year X spends Christmas in New Zealand and in the other year X spends Christmas in Australia.
The difficulty with the Father’s proposal is that he only has four weeks annual leave and that the uncertainty of his roster would mean that there is every possibility that for a large proportion of the time that X is in Australia, the Father will be at work.
The Father raises concerns about the Mother’s capacity to facilitate his relationship with X in the event of relocation and points to some recent difficulties where the Mother has not readily agreed to the Father having some additional time as proof of her failure to facilitate his relationship with X.
I do not accept the Father’s evidence that the Mother has not facilitated X’s relationship with the Father. The Mother has shown a remarkable commitment to X having a relationship with his Father since separation. The flexibility and co-operation the Mother has shown in enabling X to spend a night every week with the Father subject to his roster and often on very short notice is not only highly commendable, but quite remarkable. Many a separated parent would have been much less accommodating of such a situation, particularly in circumstances where the Father has not been able to provide the Mother with the same level of flexibility and she has not ever been able to rely on him to care for X if she needed someone to look after him because she had her own social or work events to attend.
The Father and paternal grandmother in particular are both highly critical of the Mother’s parenting of X, alleging she is untidy, dirty and does not feed X properly. There is no independent evidence of this whatsoever and the reports from X’s school, the report writer and both parties is that X is a happy, healthy, well-adjusted little boy who is doing very well at school, who has positive peer-relationships and is meeting all of his milestones.
It is the Mother’s evidence that she feels bullied and undervalued by the Father and the paternal family and that this too is another factor contributing to her belief that relocation would be in the best interest of herself and X.
It is the Father’s proposal that not only should the Mother be prevented from relocating, but that the Court should immediately put in place orders that X live week-about with each of his parents. Ms J gave very clear evidence that such an arrangement is not in X’s best interests as he would not cope emotionally with that level of separation from his primary carer who is his Mother.
It is also the Father’s evidence that given his work roster, he would not be available to care for X for the entirety of any given week that X is in his care and that his partner Ms P, his mother or his sister would need to assist him in X’s care. In cross-examination, the Father conceded that it was probably in X’s best interests that if he is not available to provide X’s care then it should be the Mother who did so.
It is the Mother’s evidence that in the event relocation is not allowed, she will have to sell her home in (omitted) and, given the lack of employment opportunities in (omitted) will need to move to the greater Melbourne metropolitan area to find suitable accommodation and employment for herself.
If she were to move to Melbourne, the Mother proposes that X spend alternate weekends with the Father as well as mid-week time and holiday time. The Father’s roster would make this proposal impractical.
It is the Father’s evidence that he would not contemplate moving to New Zealand in the event of relocation and that if the Mother and X remained in Victoria but moved to Melbourne, he would not move to Melbourne from the (omitted) area as that is where he and his partner’s lives are based.
The tension between a parents’ wish to pursue their own life and happiness and the entitlement of a child to have a meaningful relationship with both of his parents lies at the very heart of the real difficulty this Court faces when determining matters of this type.
This tension becomes even more pronounced the greater the distance of the relocation because of the practical difficulties of putting in place arrangements that will enable the child to spend regular weekly or even monthly time with both of his or her parents and to enable both parents to have an active involvement in the child’s day to day life.
Ultimately, the living arrangements for, in this case X, must be determined in accordance with the provisions of the Act and therefore on the basis of what is in his best interests.
In this matter, the difficulties and challenges that the Mother has encountered in her life in the last twelve months have caused her to form the view that it would be in her best interests and therefore X’s best interests if she were to relocate to (omitted) in New Zealand where she will have the practical and emotional support of her family and where she believes she will be able to re-establish herself emotionally and economically.
In the last eighteen months the once co-operative parenting relationship that the Mother had with the Father has completely broken down, the support that the Mother had from the extended paternal family has been withdrawn, the negative views that the Father and the extended paternal family have of the Mother’s parental capacity has been more strongly voiced and the Mother has lost her job and has been unable to find alternative employment at the same level of remuneration and is therefore needing to sell her home.
The Mother has a history of depression and anxiety which is currently being fuelled by the uncertainties in her life and her wish to relocate.
Dr W in his psychiatric assessment and Ms J in her family report quite properly challenge the Mother’s belief that her underlying issues of depression and anxiety will be miraculously resolved upon relocation but both agree that relocation will assist the Mother which in turn will impact positively on her parenting of X.
The Father is understandably distressed at the thought of X moving to New Zealand and the resultant loss of the regular time he would be able to spend with X.
The reality is however the Mother and X are going to have to relocate from the (omitted) region to Melbourne. When this happens it will not be possible for the current arrangements in place to continue. It will not be possible for X to continue to spend overnight time with the Father during the week from after school to before school the next day because of the distance between (omitted) and wherever the Mother and X live in Melbourne.
The Father raises concerns about the Mother’s willingness to facilitate a relationship between himself and X in the event of relocation. For the very many reasons already set out previously in this judgment, I am more than satisfied that the Mother will continue to facilitate that relationship.
The Father also raises the concern that if permitted to relocate to New Zealand the Mother will use that as a “stepping stone” for moving even further away with X. I do not accept that this is the Mother’s motivation in seeking to relocate to New Zealand and am satisfied that the Mother’s stated reasons for wishing to relocate to New Zealand are genuine. Further, the Mother has indicated a willingness to agree to an order that restrains her from relocating to New Zealand save back to Australia and to having those orders registered in New Zealand and they can be enforced in that country.
The Family Law Regulations 1984 enable parenting orders made by an Australian Court to be registered and enforced in New Zealand. The Father is able to request a Registrar of this Court to forward these Orders to the New Zealand Family Court for registration which will enable him to enforce the Orders.
In all these circumstances I have formed the view that it is in X’s best interests that he be permitted to relocate to (omitted), New Zealand with the Mother.
In relation to both parties’ proposals as to the time X should spend with the Father in the event of relocation, neither proposal I believe is in X’s best interests.
I am not satisfied that the Mother’s proposal which results in X going six months between visits with his Father in every second year is in his best interests.
I am also not satisfied that the Father’s proposal that X spend ten days in each term holidays and four weeks in the long summer vacation with him in Australia is either appropriate or practical given the Father’s work commitments and because X should be allowed to have some holiday time with his Mother.
Accordingly orders will be made for X to spend time with the Father in Australia for one week in each of the term holidays, for ten days in the 2015/2016 long summer vacation and thereafter for two weeks in each of the long summer vacations, the starting date of the summer holidays to ensure that X spends Christmas one year in Australia and Christmas one year in New Zealand.
The Mother argues that part of her proposal for the time X spends with the Father in Australia is based on X being afforded the opportunity to share his birthday and Easter with each of his parents. I am of the view that can be accommodated by orders being drafted that, subject to X’s school terms in New Zealand, enable X to spend those times with each parent in alternate years in a manner similar to the parties’ arrangement for Christmas.
Orders will also be made for there to be Skype and telephone communication between X and his father no less than once a week and otherwise as requested by X.
An order will also be made restraining the Mother from relocating from New Zealand save back to Australia.
Shared parental responsibility across two countries is not easy at the best of times, and particularly so when the communication between the parents is as fractured as is the case in this matter at this time.
It is the strong recommendation of Ms J that the parties should undertake family therapy to address their current difficulties. Therefore orders will be made, that if possible, prior to the Mother relocating, the parties attend at (omitted) Support Centre or the Family Relationship Centre in (omitted) for child focused counselling to assist the parties to better communicate in relation to their son.
Finally, both Dr W and Ms J flag the necessity for the Mother to better address some of the long-standing issues that underlie the depression and anxiety from which she has suffered for many years. They both flag concerns about the impact on X if the Mother doesn’t properly address these issues. Orders will therefore be made that upon relocation the Mother undertake appropriate counselling and therapeutic intervention to work through these issues and for her to provide the reports of Dr W and Ms J to her treating psychologist or counsellor to better facilitate the efficacy of that counselling.
I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 27 May 2015
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Family Law
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