Rowan & Hopkins
[2022] FedCFamC2F 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowan & Hopkins [2022] FedCFamC2F 214
File number(s): ADC 5855 of 2021 Judgment of: JUDGE BROWN Date of judgment: 2 March 2022 Catchwords: FAMILY LAW – interim parenting arrangements – unilateral relocation of children aged 4 & 7 – children moved from suburban Adelaide to Region C – distance involved approximately … kilometres – mother asserts move necessitated by accommodation emergency – matters to be considered – best interests. Legislation: Evidence Act 1995 (Cth) at s 144.
Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61DA, 62G, 65DAA.
Cases cited: AMS v AIF; AIF v AMS (1999) 199 CLR 160.
B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676.
C & S [1998] FamCA 66.
Godfrey v Sanders (2007) 208 FLR 287.
Goode & Goode (2006) 36 Fam LR 422.
Mazorski v Albright (2007) 37 Fam LR 518.
Morgan & Miles [2007] FamCA 1230.
Russell & Russell & Anor [2009] FamCA 28.
SS v AH [2010] FamCAFC 13.
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 24 February 2022 Place: Adelaide Counsel for the Applicant: Mr Childs Solicitor for the Applicant: Legal Services Commission of SA Counsel for the Respondent: Mr McQuade Counsel for the Applicant: The Family Law Project ORDERS
ADC 5855 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROWAN
Applicant
AND: MR HOPKINS
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The children X born 2014 and Y born 2017 do live with the mother in B Town in Region C.
2.The children spend time with the father as follows:
(a)Each alternate weekend from 6.00pm on Friday until 5.00pm on Sunday;
(b)During school holidays on a week about basis with handover to occur each Friday at 6.00pm.
3.The father be at liberty to contact the children via FaceTime each Tuesday and Thursday at 6.30pm for up to 20 minutes.
4.During the father’s time in the school holidays, the mother be at liberty to contact the children via FaceTime each Tuesday and Thursday at 6.30pm for up to 20 minutes.
5.Notwithstanding any other Orders contained herein the children spend time with each of the parties on special occasions as follows:
(a)On Mother’s Day with the mother as agreed between the parties in writing;
(b)On Father’s Day with the father as agreed between the parties in writing.
(c)For Easter as follows:
(i)With the mother from the conclusion of school (or 4.00pm if a non-school day on Maundy Thursday until 4.00pm on Easter Saturday and with the father from 4.00pm on Easter Saturday until 4.00pm on Easter Monday.
6.Unless otherwise agreed in writing, all handovers occur at McDonalds, Suburb D.
7.Each party keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while they are in that party’s care and keep the other informed of any medication to be taken by the children.
8.The parties be restrained and an injunction be granted restraining them from speaking with or in the presence of the children any matter regarding the separation between the parties and/or any matter regarding parenting arrangements.
9.Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by late-July 2022.
10.The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
11.The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
12.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
13.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
14.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
15.The matter be referred to a Judicial Registrar for further conciliation on 21 March 2022 at 12.00 noon.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowan & Hopkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This case concerns what lawyers characterise as an interim unilateral relocation matter concerning two children – X born 2014 (hereinafter referred to as “X”) and Y born 2017 (hereinafter referred to as “Y”). The parties to the proceedings are X and Y’s parents - their mother Ms Rowan (hereinafter referred to as “the Mother or “Ms Rowan”) and their father Mr Hopkins (hereinafter referred to as “the father” or “Mr Hopkins”).
The parties have never been married. They were in a de facto relationship between late 2012 and sometime in late-2019. The exact date of separation is controversial as it has time limit implications for an application for settlement of de facto property instigated by Ms Rowan on 2 December 2021. This application did not raise parenting issues.
The father responded to this application on 21 January 2022. He sought the dismissal of the mother’s property application on the basis that it was statute barred, as he asserted that the parties had actually separated finally in late 2019 and shortly thereafter he and Ms Rowan effected an informal division of their property, which was minimal.
More relevantly to the current matter, in his response, Mr Hopkins raised issues relating to the care of X and Y. On a final basis, he seeks what is commonly called an ‘equal time arrangement’, with the children moving between their parents’ respective households on a weekly basis, during school terms. Necessarily, for reasons relating to practicality, such a regime would require the parties to live in reasonable proximity to one another.[1]
[1] See Family Law Act 1975 (Cth) s 65DAA(5)(a).
On an interim basis, Mr Hopkins seeks orders which would envisage the children continuing to live with their mother in metropolitan Adelaide and spending time with him, on alternate weekends, from the conclusion of school Friday until the recommencement of school the following Monday. It is common ground that this has been the regime for the children’s care since about November of last year.
The parties agree that they lived in several different locations during their relationship. Mr Hopkins joined the Australian Defence Force in early-2013, when he was living in Melbourne. The mother moved to Melbourne, from Adelaide, around this time to be with him. After X’s birth, the family was posted to Darwin, where Y was born.
In 2018, the family moved to Adelaide. It is the mother’s case that both parties grew up in South Australia, she asserts in the Region C area of the state. Around the time of the parties’ final separation, Mr Hopkins was posted to Darwin in late-2019 and in early-February 2020 was deployed to Country E for 7 months, returning to Darwin in September 2020. For obvious reasons, the children had to remain in the care of their mother.
In July 2021, Mr Hopkins left the Australian Defence Force and moved to Adelaide, on his case, in order to be as close to the children as possible. He is currently living in rented accommodation, in Adelaide and is employed as a manager by a large construction company earning approximately $1,930.00 per week. His major expenditure is his rent of $400.00 per week.
At the time of the de facto property application, the mother was working on a part-time basis in healthcare. She was earning approximately $171.00 per week, which was augmented by Commonwealth benefits amounting to $700.00 per week. The father pays her child support of around $90.00 per week. In total she recorded her gross income as $1,059.00, which she deposes is approximately equal to her recurrent expenditure. Her major expense was her rent of $344.00 per week.
It is clear that relations between the parties were extremely difficult, after Mr Hopkins returned from Country E. In this context, in late-2020, each engaged a solicitor to conduct negotiations between them, particularly in respect of parenting arrangements.
Ultimately, on 6 August 2021 they engaged in a Family Dispute Resolution Conference, at which it was agreed that the father would spend time with the children, during the day, on each alternate Saturday and Sunday, as well as on special occasions. This followed a process which had apparently involved the gradual and incremental re-introduction of the children to their father.
It was also agreed that the parties would attend a review conference on 26 November 2021. At this conference it was agreed that the children would begin to spend time with their father, on alternate weekends, from the conclusion of school on Friday (or 4.00pm if it was a non-school day) until 4.00pm the following Sunday. Handovers, which could not occur at X’s school or Y’s day care, were to take place at Suburb F McDonalds. The parties agreed to a further review conference, which was subsequently fixed for 14 February 2022.
In an Affidavit filed on 21 January 2022, Mr Hopkins deposed as follows:
The applicant has threatened to unilaterally relocate the children’s primary residence to [B Town] in [Region C]. I learned of [the] applicant’s lease running out during one of my calls with the children. [X] told me that they were living with one of his friends. I emailed the applicant on 6 January 2022 to confirm their living arrangements and offered for the children to live with me while the applicant sourced appropriate housing. The applicant did not respond.[2]
[2] See Affidavit of Mr Hopkins filed 21 January 2022 at [50].
It is now common ground between the parties that the mother and the children concerned have indeed moved from Adelaide and are currently residing in B Town, in Region C area of South Australia, approximately … kilometres from Adelaide, which takes approximately two and a half hours to drive.
As a consequence of this move, X has left his previous primary school at Suburb G, a suburb of Adelaide, which is comparatively close to Mr Hopkins’s current home in Suburb H. X has subsequently been enrolled at the J School and Y has commenced at the J Kindergarten.
In her application filed on 22 February 2022, Ms Rowan seeks the court’s retrospective approval for the children to continue living with her in B Town. In tandem with this approval, she proposes that the children spend time with their father, on alternate weekends from 6.00pm on Friday until 5.00pm the following Sunday, during term times and, during school holidays, on a week about basis.
She proposes the McDonald’s restaurant, in Suburb D, as the place at which the handover should occur. Implicit in this proposal is an acknowledgement that she would be responsible for transporting the children between B Town and Adelaide.
It is the father’s position that the court should make an order compelling the mother to return the children to live at some place within the metropolitan area of Adelaide and thereafter the regime on which the parties agreed at the November Family Dispute Resolution, be formally inaugurated in an order of the court.
I have characterised this as an interim unilateral relocation case. It is necessary and useful to define what is meant by each of these terms in order to place the current dispute between the parties in its legal context, beginning with the concept of an interim hearing.
Interim hearings invariably occur in an atmosphere of crisis, in the family concerned, which necessitates the court’s urgent involvement. Clearly, this is the case in the current matter, given what Mr Hopkins would characterise as the mother’s precipitate move, with the children from Adelaide.
As a consequence of the background of urgency surrounding many interim applications, it is not possible for the court to conduct an exhaustive hearing, involving cross-examination, of all the witnesses and evidence arising in the case. That is the case in the current matter, which has proceeded on the basis of the parties’ affidavit evidence only.
In addition, it is frequently the case, at the interim stage, that there has been insufficient time for any expert evidence or report to have been commissioned, which examines the parties’ competing proposals from the perspective of the children concerned.
In a case like the present one, ordinarily, a Family Report would be prepared, which would involve an independent expert interviewing the children concerned and observing how each of them interact with their parents. Given the urgency of this matter, there has not been sufficient time for such a report to have been prepared.
Accordingly, interim hearings occur in a truncated form. As such, the court is not in a position to make concluded findings of fact about factual issues in dispute between the parties. However, notwithstanding the deficiency in the evidence, the court is still required to make an adjudication in respect of the parties’ competing applications, which it considers will best serve the interests of the children concerned.
There are many factual issues in dispute between Ms Rowan and Mr Hopkins in the present matter, which include the following:
·What was the nature of their relationship? Was it characterised by coercive control by the father to the mother, as Ms Rowan alleges;
·Is the mother intent on truncating the father’s relationship with X and Y to satisfy her own emotional needs, as Mr Hopkins alleges;
·Is there a crisis in terms of the supply of rental residential accommodation in Adelaide at present, as Ms Rowan alleges;
·Could Ms Rowan have made more concerted efforts to find alternative accommodation for herself in the wider areas of metropolitan Adelaide or made other attempts to find accommodation with friends and family in Adelaide, as Mr Hopkins alleges;
·Are the mother’s assertions that she can find nowhere to live in Adelaide, for herself and the children, a form of subterfuge to get her own way?
These are subtle issues, which underpin the respective positions of the parties, in these vehemently contested proceedings. Ultimately, if they are to be resolved by the court, such resolution will have to occur at final hearing and are likely to turn on the court’s assessment of the parties’ respective credit.
In cases such as Goode & Goode,[3] the Full Court has emphasised the need for the court, at the interim stage, to focus on agreed facts and avoid any attempt to resolve controversies at this stage.[4] However, if the welfare of a child is at stake, the court cannot shy away from making appropriate orders merely because of deficiencies in the evidence. A balance must be struck.[5]
[3] Goode & Goode (2006) 36 Fam LR 422.
[4] Goode & Goode (supra) at [68] (Bryant CJ, Finn and Boland JJ).
[5] See SS v AH [2010] FamCAFC 13 at [100] (Boland and Thackray JJ).
The ethos of the Family Law Act 1975 (Cth) (“the Act”), which provides the legal principles which the court must apply in determining issues to do with the parenting of children encourages parents to make joint decisions in respect of significant care arrangements for their children. One such major long term decision is one which may render it significantly more difficult for a child to spend time with a parent.[6]
[6] See Family Law Act 1975 (Cth) s 4.
Given these factors, the court is generally disapproving of a parent who makes a decision, independently of the other parent concerned, without first seeking the court’s approval, or at least attempting to resolve the issue concerned with the other parent. Particularly contentious are unilateral relocations of young children, whose relationship with each of the parents concerned are not fully formed, and are so vulnerable to the vicissitudes arising from geographical distance.
Relocation cases arise when one parent of a child wishes to move some significant distance away from the other parent concerned, taking the child of the relationship with them. For obvious reasons, such cases are invariably very difficult. Australia is a free country. As such, individuals, including separated parents, are free to live where and how they like. On the other hand, children have a right to know and be cared for by both their parents.
As will be detailed in due course, the present matter is an extremely problematic case, which presents no easy or obvious solution at the interim stage. Whatever happens, one of the parties will be bitterly disappointed, and feel that the decision is wrong and contrary to the best interests of X and Y, whom the decision primarily affects.
As a consequence of these factors, superior courts in Australia, including the High Court, have indicated that every family law case, involving a relocation aspect, requires close and idiosyncratic examination.[7] Axiomatically, such a degree of intricate scrutiny is not possible at the early interim stage of proceedings given the provisional and incomplete nature of the evidence available, at the interim stage, particularly in terms of the availability of independent expert evidence, in the form of a Family Report.
[7] AMS v AIF; AIF v AMS (1999) 199 CLR 160, 206-7 [142] (Kirby J).
Accordingly, at the interim stage, the orthodox approach usually adopted by the court is not to allow a relocation of a child, involving a significant level of distance, unless there is some kind of emergency or personal crisis confronting the relocating parent, which if left unresolved, has potentially serious implications for the welfare of the child concerned.
Rather, the court is directed to deal with difficult issues of relocation, at the final hearing stage, when all relevant evidence will have been collated, including any expert assessment of the family concerned. This allows for all evidence to be thoroughly tested and scrutinised.
In addition, the court is cautioned against conducting any relocation case against a background where advantage is skewed in favour of a parent, who has earlier in the proceedings, unilaterally moved with the child concerned. However, the best interests of the child, not the interests of the child’s parents, remain the court’s paramount concern.
This is Mr Hopkins’s position. He asserts that the mother did not enter into the November consent orders in a bona fide manner but had long planned to move to B Town so as to truncate his relationship with the children and negate his aspiration to have a shared parenting regime in respect of X and Y. As such, the move cannot be characterised as being in the children’s best interests.
In these circumstances, he submits that, if the court retrospectively approves the mother’s relocation of the children, he will be served with a fait accompli and any final hearing, in respect of the issue, will be rendered otiose because the children will be ensconced in their new home and schools and thus the children will be deprived of the likely benefits of having a fully meaningful level of relationship with him.
On the other hand, it is Ms Rowan’s position that she was confronted with an accommodation emergency, which left her no alternative but to move to a place which can provide her with security, both in physical and emotional terms, namely her parent’s home in B Town. Essentially, she asserts that it would not be in the children’s best interests if they and their primary carer are compelled to an uncertain existence in the short to medium term. Although the move can be characterised as recent, it has brought about a stability in care arrangements for the children concerned.
THE MOTHER’S CASE
It is Ms Rowan’s position that she was subject to coercive and controlling behaviour, during the parties’ relationship, which escalated after separation to incidents of stalking and harassment. She alleges that these issues have been reported to the police but no Family Violence Order has been made.
There is no dispute between the parties that Ms Rowan has always been the children’s primary source of both physical care and emotional support. This seems incontrovertible given the periods of time Mr Hopkins has been living away from the children, either interstate or overseas.
The mother also alleges that the father has been emotionally manipulative of the children, particularly X in the period since his return to Adelaide. As a consequence she has engaged psychological support for X. The overall tenor of the mother’s case is that relations between her and the father are extremely problematic, and the two experience significant difficulties in communicating effectively with one another.
In these circumstances, any planned or consensual relocation of the children, although logistically necessary and sensible in the circumstances prevailing, would have been impossible. Hence, she acted in the manner in which she did to ensure that X and Y (and indeed herself) had a roof over their heads.
The mother’s reasons for moving to B Town can be summarised as follows:
·In early November 2021, she received notification from her landlord requiring her to vacate her rented premises by the end of December, so that the owner could sell the property;
·Thereafter, she has unsuccessfully applied for 26 rental properties in the immediate suburbs to where she works and X has attended school and provided evidence of her attempts in this regard;
·She also contacted K Service to see if she would be eligible for supported rental accommodation but that organisation was not able to assist her;
·Following her leaving her previous accommodation, she and the children stayed with a friend, for a brief period of time but this was impracticable in the longer term.
In all these circumstances, Ms Rowan asserts as follows:
I have done everything in my power to obtain a rental property in Adelaide. I have been told by multiple real estate agents that there is a rental crisis in Adelaide at the moment. I have a good rental record however being on one income does not make me a prime candidate for a rental property.[8]
[8] See Affidavit of Ms Rowan filed 21 February 2022 at [52].
In these circumstances, Ms Rowan has deposed that she reached the conclusion that she had limited options for herself and the children in Adelaide and therefore she discussed options with her parents, who live in B Town.
From her perspective, the only alternative to living with her parents, at B Town, was homelessness in Adelaide. She describes her parent’s home as being a large and comfortable one, which provides more than ample accommodation for her and the children. It is also affordable. It is close to her brother’s home and, as a consequence, the children are able to engage with their cousins regularly.
Since moving to B Town, Ms Rowan has obtained part-time work, as a retail assistant, in L Town. It is also her position that she receives familial and social support, in the B Town area, as this is the location in which she grew up. It is also her case that X and Y have a close relationship with their maternal grandparents.
Essentially, it is Ms Rowan’s case that her move to Region C area was carefully considered, on her part, and was motivated chiefly by necessity, not any ulterior motive relating to the father, with whom she finds it difficult to confer. From her perspective, the move was the best option, not only for herself but also for the children. In this context, she deposes as follows:
I did consider travel time to Adelaide, education available for the children and employment prospects for myself. I ensured that the Respondent could continue his current time spending arrangements and in this regard I have continued to facilitate handover on his regular alternate weekend for the children to spend time with the Respondent. My reference to “considering this move for some time: was stated to explain that I properly considered all of these relevant factors over some weeks since mid to late December 2021.[9]
[9] Ibid at [53.5].
THE FATHER’S CASE
Underpinning Mr Hopkins’s case, is his assertion that Ms Rowan is disinclined to support his relationship with X and Y, to which he has demonstrated his commitment by moving to Adelaide, following the completion of his commitments in both Country E and Darwin. He denies the allegations of family violence, or any emotional instability on his part.
It is Mr Hopkins’s position that the mother has overstated her accommodation difficulties in Adelaide to suit her own purposes. He asserts that she has other friends and a relative, in Adelaide, with whom she could have sought shelter. In addition, in his affidavit material, he proposes that the children could have stayed temporarily with him, whilst the mother sought alternative accommodation.
More significantly, Mr Hopkins questions the information provided by Ms Rowan, regarding her various applications for accommodation in November and December of last year. He asserts that the mother should have been more far-reaching in the accommodation which she sought and should have made enquiries throughout the metropolitan area of Adelaide rather than confining her enquiries to suburbs around where she previously lived.
Essentially, although he is compelled to accept the fact that the mother was faced with eviction from her accommodation, he asserts that she has half-heartedly gone about her attempts to find somewhere to live in Adelaide and has used the loss of her rental as a pretext to cover her true reason for moving to B Town, which is to make sure his relationship with the children cannot be advanced. In this context, he points to the fact that many of Ms Rowan’s applications for rental accommodation were made after she had apparently moved to B Town, a fact which Ms Rowan disputes.
As I indicated to the parties’ respective counsel during the interim hearing, I do not believe that I am in a position to take judicial notice of whether there is or is not a rental accommodation crisis in Adelaide. I do not consider that it is a matter of common knowledge in the locality of Greater Adelaide. In addition I have not been provided with any document to corroborate such an assertion, certainly not one of which its authority is not open to question.[10]
[10] See Evidence Act 1995 (Cth) s 144.
Although Mr Hopkins concedes that he has continued to see the children on alternate weekends and he personally has not had to drive to B Town to collect them, he contends that his time with the children has been reduced on Fridays because, for logistical reasons, relating to the drive, the time cannot commence from after school. In this context, he asserts that the mother’s offer to increase time on Sundays to compensate is inadequate in nature.
It would also appear to be his position that the mother’s proposal is untenable in the longer term because the time the children will be compelled to spend in a car will be unduly onerous for them. He denies that X has been emotionally disturbed by engaging with him. Rather, he alleges that the child does not wish to return to his mother following the periods of time he spends with his father.
As delineated above, although the father does not dispute that the mother lost her accommodation, through no fault of her own, he asserts that she could have found some form of alternative accommodation for herself. In this context, to my mind, it is telling that Mr Hopkins does not point to where that accommodation is, or what form it would take. Nor is he in a position to advance direct financial assistance to Ms Rowan to find somewhere else to live. Rather, he just asserts that she could have done better and tried harder, without providing details as to how she could have done so.
I accept that Mr Hopkins is not in a position to move to Region C because of his own accommodation and employment commitments based in Adelaide. By necessary implication, he requires Ms Rowan to subordinate her accommodation issues to those of Mr Hopkins.
LEGAL PRINCIPLES APPLICABLE
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.[11]
[11] Goode & Goode (2006) 36 Fam LR 422, 445 [81] (Bryant CJ, Boland and Thackray JJ).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration.[12]
[12] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[13]
[13] Ibid s 60CC(2)(a)-(b).
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed when applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[14]
[14] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 735 (Nicholson CJ, Fogarty and Lindenmayer).
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general.”[15] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[16]
[15] Ibid 734.
[16] See Russell & Russell & Anor [2009] FamCA 28 at [141] (Ryan J).
The primary considerations receive greater emphasis as a consequence of the objects and principles underpinning Part VII of the Act, which is the part of the legislation that relates to children. The court is directed to ensure the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives.[17]
[17] Family Law Act 1975 (Cth) s 60B(1)(a).
Some of the principles underlying this objective include the following:
•Children have the right to know and be cared for by both their parents, regardless of the status of the relationship between the parents concerned;[18]
•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, including grandparents;[19] and
•Parents jointly share duties and responsibility concerning the care, welfare and development of their children.[20]
[18] Ibid s 60B(2)(a).
[19] Ibid s 60B(2)(b).
[20] Ibid s 60B(2)(c).
Accordingly, the law emphasises that parents share responsibilities for their children and should, consistently with protective concerns, make major long-term decisions, concerning their child or children, consensually.
The legislation, among other things, defines a major long-term decision, as including a decision to change a child’s living arrangements to such an extent that it makes it significantly more difficult for the child to spend time with a parent.[21]
[21] Ibid s 4.
Given these considerations, cases involving the actual or potential relocation of a child far away from one of their parents are particularly difficult for the court involving, as they do, competing legal principles relating to freedom of movement, and the entitlement of children to have a beneficial level of relationship with not just one but both of their parents.
For obvious reasons, issues to do with relocation invariably have very significant implications for the welfare of children, particularly young children, who cannot easily sustain relationships with parents over distance.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of their parents, particularly if that recent development has been created by the actions of one parent alone.[22]
[22] See C & S [1998] FamCA 66.
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young children. In this particular case, I bear in mind what was said by Justice Boland in Morgan & Miles.[23] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.
[23] Morgan & Miles [2007] FamCA 1230.
However, in the same case, Her Honour also indicated as follows, when she declined to accede to any proposition that relocation cases constituted a special category of parenting case or that that the Act was to be applied in a distinctive manner.
From this, it appears that I must follow the pathway applicable to all parenting cases and, in so doing, not lose sight of the fact that it is X and Y’s best interests which remain paramount. She said as follows:
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.[24]
[24] Ibid at [74] (Boland J).
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act, and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for them.[25]
[25] Family Law Act 1975 (Cth) s 61DA.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply this provision only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed them to family violence.[26]
[26] Ibid s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have equal shared parental responsibility for the child concerned.[27]
[27] Ibid s 61DA(4).
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing.[28]
[28] Ibid s 61DA(3).
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:
·consider the section 60CC matters that are relevant to the matter;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
·there are reasonable grounds to believe abuse or family violence has occurred;
·or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children's best interests, as a result of the consideration of any relevant section 60CC factors, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
DISCUSSION
I now turn to consider, as best I can, in the context of this interim hearing, the relevant factors arising under section 60CC. Although the mother has raised issues to do with family violence, it is clear that the nature of her relationship with the father was not the factor which precipitated her move to B Town.
Although her relationship with Mr Hopkins, from her perspective, is far from ideal, she does not assert that she was compelled to flee an abusive relationship. Rather, it is her case that her move was precipitated by a logistical and financial emergency in Adelaide.
In these circumstances, in my view, the court must endeavour to assess the implications of the move in the context of the benefits X and Y are likely to derive from having a meaningful level of relationship with their father. Meaningful is an ordinary English word not subject to specific definition in the Act. It has both quantitative and qualitative implications. In Mazorski v Albright,[29] Justice Brown indicated that a meaningful parental relationship is one that is important, significant and valuable to the child” concerned.
[29] Mazorski v Albright (2007) 37 Fam LR 518, 526 [26] (Brown J).
The aspects of a child’s life, in which a parent can be meaningfully involved, are, for obvious reasons, potentially multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
It is Mr Hopkins’s position that if he only interacts with X and Y on weekends or during school holidays, their relationship with him will not be able to reach its full potential to be meaningful in the sense envisaged by the Act. I accept that if the children continue to live in B Town and Mr Hopkins remains in Adelaide, he will not be able to engage spontaneously with the children or be involved in their day to day activities at their school or other extramural activities.
However, the distance involved does not mean that he will be removed as a regular and active participant in the children’s lives. As Kirby J pointed out in AMS v AIF; AIF v AMS,[30] the court has a more relaxed attitude to relocations which do not involve vast distances. In my view, it is a significant factor that the mother’s move still allows the children to see their father regularly.
[30] AMS v AIF; AIF v AMS (1999) 199 CLR 160, 209 [147] (Kirby J).
I accept, however, that it makes an equal time regime logistically unfeasible. However, what the applicable legislation aspires to is the promotion of a meaningful relationship, not an optimal relationship. [31]
[31] See Godfrey v Sanders (2007) 208 FLR 287, 298 [36] (Kay J).
In my view, the distance between B Town and Adelaide is not so great that it will prevent the children deriving a significant level of benefit from having a meaningful level of relationship with their father. It must be considered significant that the essential time regime, on which the parties have agreed, can continue to be maintained notwithstanding the mother’s move.
By necessary implication, one of the main themes of the father’s case, is on the prospective benefits of the children being parented in an equal time regime, based in Adelaide, given that he is unprepared or unable to move himself. Necessarily, such an outcome would require the mother to be restrained indefinitely, in Adelaide, against her will, which she asserts is neither her preference, nor currently feasible.
In this context, the implication of compelling the mother to return to live in Adelaide, in what she has characterised as uncertain and challenging circumstances must be considered. Clearly, she is unlikely to accept being forced to return to live somewhere she does not want to be, with equanimity, particularly given that there is no obvious source of accommodation for her and the father is not able to assist her, either financially or by providing somewhere for her and the children to live.
The children are too young to be able to express a view in respect of any preference relating to their living arrangements.[32] It is clearly the case that the children’s most important relationship is with their mother, who has been their primary carer since birth, including for relatively extensive periods in the absence of the father.[33]
[32] Family Law Act 1975 (Cth) s 60CC(3)(a).
[33] Ibid s 60CC(3)(b).
In this context, for the reasons set out above, Ms Rowan’s personal emotional and financial security are relevant considerations for the court. There must be some level of risk that an outcome which requires her to live in what she regards as untenable circumstances, essentially at the direction of the father, will undermine her capacity to provide for the children to the optimal degree. Given that she is the children’s primary carer, regard must be had to the impact of any order on her capacity to provide for the children to the best of her ability.
The mother’s case is that the children have a close and loving relationship with their maternal grandparents. Whether this is so has not been subject to any external scrutiny. However, it cannot be said that the mother’s move to B Town is a leap into the unknown, for either her or the children. She went to a location which was known both to her and the children, and managed the move in a manner which was not unduly disruptive to the children.
In my view, this provides corroboration that her relocation was a considered one, which was precipitated by an accommodation emergency, which was neither engineered, nor anticipated by her, and which cannot be considered to be motivated by some clandestine factor related to her desire to undermine the children’s relationship with their father. If this had been the case, it seems to me that it would have been more probable that she would have moved further away. Rather, the evidence indicates that she considered what was likely to be the most workable option for her and the children.
The uncorroborated evidence in this case reveals that the father, for understandable reasons relating to his employment, was prepared to leave the children in the mother’s sole care for extended periods of time, whilst he lived elsewhere. In these circumstances, in my view, there is some tension in him now dictating to the mother where she is to live with the children. Essentially he can have untrammelled freedom of movement, but she cannot.[34]
[34] Ibid s 60CC(3)(c).
The court is required to assess, as best it can, the likely effect of any changes in the children’s circumstances, including those relating to being separated from a parent.[35] Clearly this is a significant factor in the case. At this stage, the mother’s proposal does not involve the children being separated from their father for any period longer than that which occurred prior to the mother’s relocation. This is a significant factor.
[35] Ibid s 60CC(3)(d).
In addition, although the mother is to be criticised for presenting the father with a fait accompli, so far as the move is concerned, in my view, there was and remains a considerable level of uncertainty as to where she and the children are to live, if they are compelled to return to live at some unknown location within the Adelaide metropolitan area.
In this context, the possible implications of such a change, following hard upon what I consider the mother’s managed relocation, are unknowable, but potentially significant. If compelled to return, the mother may not be able to obtain suitable accommodation for herself and the children. She may not be able to obtain part-time employment again. The children may have to enrol at a third primary school and kindergarten, in a fairly short period of time. This is not likely to be helpful to them.
A major factor militating against the relocation is the practical implications relating to the father being able to spend time regularly with the children. I agree that it is potentially burdensome for the children to have to drive for over two hours, on two occasions, on each alternate weekend to spend time with him. This will also be expensive. However, Ms Rowan is currently assuming the full burden of this expense and has indicated her willingness to continue to do so.
Apart from the desirability of the father being able to collect the children from their place of education and his facility to form some form of relationship with their teachers and educators, there are no significant logistical implications so far as the father is concerned other than it is not the best possible outcome from his point of view. However, in my assessment, the implications likely to arise for Ms Rowan of having to find somewhere to live in Adelaide, get another job are far more logistically challenging for her.
Accordingly, although the proposed arrangement is far from being perfect, in my view, it is workable. As the High Court indicated in AMS v AIF; AIF v AMS, there is no universal rule of law that requires separated parents to live in close proximity, with one another, to ensure that their children have an optimal level of relationship, with each parent, for an indefinite period.[36] To the contrary, one of the primary purposes of the Act is to provide mechanisms to enable separated partners and parents to live separate lives.
[36] AMS v AIF; AIF v AMS (1999) 199 CLR 160, 208-9 [144] (Kirby J).
Australia is a very large country. In it, the tyranny of distance arises by degree. In my view, the distance applicable in the present matter is not so great that it will substantially affect in X and Y’s right to maintain personal relations with their father.[37] It will be a challenge but not an insurmountable one.
[37] Family Law Act 1975 (Cth) s 60CC(3)(e).
As previously indicated, the court is required to consider parental capacity relating to the children’s emotional and intellectual needs and the parental attitudes demonstrated by each of the parents concerned [see section 60CC(3)(f) & (i)].[38]
[38] Ibid s 60CC(3)(f) and (i).
Like the majority of relocation cases, this is a fiendishly difficult matter. Necessarily, whatever is the outcome, one of the parties will feel hard done by at its conclusion. It is impossible to fashion a result which will be satisfactory to both Ms Rowan and Mr Hopkins.
From the father’s perspective, the relocation will impact on his capacity to be involved in the day to day emotional life of X and Y, and to be involved in their respective primary school and kindergarten. Undoubtedly, this is the case.
On the other hand, to do as Mr Hopkins seeks, will curtail Ms Rowan’s personal freedoms and aspiration and potentially lead to a degree of resentment on her part, which of itself, is likely to have some negative implications for X and Y and also impact upon the viability of the parties’ co-parenting relationship.
The evidence available to date indicates that Ms Rowan has been able to support the children’s emotional and intellectual needs. Mr Hopkins does not assert that she is a compromised parent. Indeed, the evidence indicates that he was confident in leaving the children in her care, when he returned to Darwin to live.
In this context, the mother’s move to B Town cannot be characterised as being one designed to remove her from some level of scrutiny from the father. Rather, she has moved because of necessity and out of that necessity has chosen what she considers to be the best option for the children concerned. To a large degree, the emergency has its origins in her straitened financial circumstances. These cannot be characterised as being fabricated or attributable to any fault on her part.
In her difficult circumstances, she has opted to pursue the option which she considers is the least detrimental one for her and the children but it has undoubted positive attributes, which included the provision of secure and cheap accommodation, located in a place where she will have access to familial support and which has enabled her to secure another employment position for herself.
More significantly, the distances involved is not so great as to dramatically impinge on the father’s relationship with the children concerned. As such, it cannot be characterised as a move with the hidden ulterior motive of being directed towards terminating a parental relationship.
CONCLUSIONS
In my view, this is a difficult and complex case. I accept that there are significant elements of unilaterally in Ms Rowan’s behaviour. In this context, I must be careful not to easily condone actions which, in public policy terms, may have implications for other parents, who are considering moving a child or children far away from another parent.
I know from my own experience, as a judge of this court, that relocation cases, particularly unilateral relocation cases, precipitate very powerful and sometimes bitter emotions from the parents concerned. The various outcomes available cannot be twisted to provide an outcome acceptable to all concerned. As such, it is preferable that these issues be decided on a level playing field, before any move takes place.
Ms Rowan did not have Mr Hopkins’s approval to move to B Town. It was unlikely that such approval would have ever been easily provided. However, X and Y’s best interests remain the paramount consideration for the court. As such, it is not my function to punish Ms Rowan for her unilateral action, particularly if this will have some deleterious consequences for the children concerned.
In my view, the evidence does indicate that Ms Rowan was presented with a significant accommodation emergency. She did the best she could to respond to that emergency, in a child-focussed manner, which contained some reference to the children’s need to retain a meaningful level of relationship with their father.
As such, I am satisfied that the relocation was one which can be considered and contained in its implications and one which falls within the closely confined parameters envisaged by Justice Boland in Morgan & Miles. I do not consider that it would be in the children’s best interests if the mother is compelled to return to Adelaide given the obvious potential for uncertainly and disruption which surrounds such an option.
In addition, in all the circumstances of this case, including the as yet unproven issues relating to family violence, but the obvious fact that the mother has been the children’s undisputed primary carer up to this stage, I do not consider that it would be in X and Y’s best interest to move into their father’s care. This leaves the option of the maintenance of the current status quo, which I consider the best option for the children at this stage.
I do not consider that it would be appropriate to apply the presumption of equal shared parental responsibility at this interim stage, given the conflicted nature of the parties’ co-parenting relationship and the deficits in their capacity to communicate.
In anticipation of a possible final hearing I will order that a Family Report be prepared pursuant to section 62G of the Act. It is appropriate that such a report be ordered sooner rather than later. I will refer the matter to a Judicial Registrar to undertake any further conciliation required in respect of the case and to make any necessary case management directions in respect of it.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
124 I certify that the preceding one hundred and twenty three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 2 March 2022
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