Russon and Duane
[2013] FCCA 4
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUSSON & DUANE | [2013] FCCA 4 |
| Catchwords: FAMILY LAW – Parenting orders – relocation intra-state – children’s views – parents capacities to care for children – consideration of parents freedom of movement – children’s best interests – reasonable practicability. |
| Legislation: Federal Circuit Court Regulations |
| Cases cited: Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR RUSSON |
| Respondent: | MS DUANE |
| File Number: | MLC 6036 of 2010 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 2 & 3 April 2013 |
| Date of Last Submission: | 3 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burns |
| Solicitors for the Applicant: | G A Black & Co |
| Counsel for the Respondent: | Mr Stanley |
| Solicitors for the Respondent: | Ken Smith & Associates |
ORDERS
THE COURT ORDERS THAT:
All extant orders in respect of the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2005 (“[Y]”) be discharged.
The applicant mother and the respondent father have equal shared parental responsibility for the children [X] and [Y].
[X] and [Y] live with the mother and that she be permitted to move their primary place of abode from [H] to [W].
[X] and [Y] spend time with and communicate with the father as follows:
(a)Each second weekend from Friday at 4.15 pm (or otherwise as agreed between the parties) until Sunday at 6.00 pm (extending to Monday at 6.00 pm in the event of a long weekend or a student free school day);
(b)On one other night each week from 4.15 pm (or otherwise as agreed between the parties) until the following morning as agreed between the parties, such night to be at the choice of the father but consistently the same night each week subject to agreement otherwise between the parties;
(c)For one half of all school holidays excepting Christmas Eve to Boxing Day and the parties’ birthdays (with the parties to agree to which half and in the absence of agreement, the father is to have the first half in even years and the second half of odd years);
(d)(i) For the period of Christmas from 12.00 noon on 24 December to 3.00 pm on 25 December each and every alternative year to commence in December 2013; and
(ii)From 3.00 pm on 25 December to 6.00 pm on 26 December in alternative years to commence in 2014:
(e)For time as agreed between the parties on the father’s birthday and each of the children’s birthdays;
(f)If the children are not otherwise with the father, then from 5.00 pm on the Saturday until 6.00 pm on the Sunday for Father’s Day but should the children be with the father pursuant to these orders on the Mother’s Day weekend then such time concludes at 5.00 pm on the Saturday.
For the purposes of [X] and [Y] spending time with their father, changeover occur at the appointed times at a venue near equal distance between [H] and [W] to be agreed between the parties but failing agreement then the parties have liberty to apply.
These orders enable and entitle each parent to all access to the children’s school principal and teachers normally afforded parents and to be provided with all school reports and notices.
AND THE COURT NOTES THAT:
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Russon & Duane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6036 of 2010
| MR RUSSON |
Applicant
And
| MS DUANE |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the two children of the parties, being [X], born [in] 2000 (aged 12 years), and [Y], born [in] 2005 (8 years).
The Parties Proposals
The mother proposes that [X] and [Y] continue to live predominantly with her but that she be permitted to relocate the children’s primary residence from [H] to [W], being a distance of approximately 95 kilometres.
The mother proposes that the existing arrangement for the children spending each second weekend with the father from after school on Friday until 6.00 pm Sunday continue but that they also spend overnight each Thursday from 4.30 pm until the commencement of school on Friday with him. This would, of course, result in each second “weekend” commencing on the Thursday after school and continuing until the Sunday. The rationale for this mid-week time is to accommodate the shared interest of the boys and the father in [sport omitted] at [H] and to allow them to attend training. The mother also proposes that the children spend half of each school holidays with the father.
Mr Russon seeks an order restraining the mother from relocating the children from [H]. He proposes a continuation of the status quo, which is evidenced in consent orders made between these parents on 19 July 2010.
Alternatively, if the mother was to herself relocate without the children then he proposes that [X] and [Y] live with him and spend time with the mother each second weekend from Friday evening until Sunday evening together with Wednesdays overnight and one half of school holiday periods.
Neither party argues that the presumption of equal shared parental responsibility should not apply or is rebutted.
Background
The father is 46 years old. The mother is 41 years of age. Both appear to have lived most of their lives in [H] which is a country town in Victoria with a population of approximately 6000.
The parties married in [omitted] 1997 and finally separated in June 2008. They were divorced on 26 December 2010.
On 19 July 2010 consent orders were made by a registrar in the Family Court in respect of both children’s and property matters. In his application now before the Court the father seeks an order, inter alia, whereby “the wife pay to the husband the sum of $100,000 by way of property settlement”. I infer that this can only be an application pursuant to section 79A of the Act. In any event, that application was not prosecuted before me and I understand that the husband reserves his right to bring an application pursuant to section 79A of the Family Law Act if the court allows the relocation of the children based on what, he says, was a collateral agreement between the parties at the time of the property settlement whereby the wife received a generous settlement on account of the children remaining in [H].
[Y] attends a local primary school. [X] has commenced year 7, his first year at high school, at [omitted] secondary school. This involves travel by bus for near an hour each way.
The father works as a [omitted] based in [H]. There is no indication that he has re-partnered.
The wife works as a [omitted] in the [H] area. She has purchased a home for herself and the children in [H] following separation from the children’s father.
The extended families of each of the parents live generally in the [H] area.
In about 2009 or 2010 the wife re-partnered with Mr M. He is a [occupation omitted] who lives in the [W] area. Both the mother and Mr M claim that the relationship is a committed one and the mother is pregnant and due to give birth in [omitted] 2013. Mr M does not otherwise have children.
Although these proceedings were commenced on the husband’s application effectively seeking an order restraining the mother from relocating from [H], the trial proceeded with the mother as the applicant given it is her application to relocate the children. .
The Issues
The major issues for the Court’s consideration can be summarised as follows:
a)Whether the children’s best interests are served by them living with the mother or the father taking into consideration the mother’s anticipated move of the children from [H] to [W].
b)The weight to be afforded the children’s stated views and wishes in respect of their living arrangements?
c)The capacity of each of the parents to attend to the physical, emotional and intellectual needs of the children?
d)The effect on the children of the changes in their living arrangements and on their relationships anticipated by the mother’s proposed relocation;
e)the practicality of the mother’s proposals for the children’s time with the father should she be permitted to relocate them to [W];
f)the effect on the mother’s parenting capacity should she be required to remain in [H] as primary parent of the children (it not being a part of the mother’s case that she would relocate without the children)?
g)
The options available to the parents other than the mother’s relocation of the children to [W], including the possibility of
Mr M moving to live in [H] and/or the father moving to live in [W]?
The Relevant Law
The Family Law Act 1975 (“the Act”) provides at section 60CA that the court must regard the best interests of the children as the paramount consideration in determining parenting orders.
The Act itself is silent as to the notion of relocation of children. It follows that relocation is neither prohibited nor is there a presumption against it[1]. A proposal by one parent to relocate children is simply one matter for the court’s consideration, along with numerous others, in arriving at orders which are in the best interests of the children. This intellectual process has been emphasised in many relevant authorities, including Paskandy & Paskandy[2] where the Full Court noted:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence, and a further or separate issue as to whether the relocation should be “permitted”.
[1] Morgan & Miles [2007] FamCA 1230
[2] (1999) FLC 92-878 [86,456]
Nevertheless, parenting matters which involve a possible relocation of the children are among the more difficult to come before the courts. This is so whether the proposed relocation is international, interstate, or intra-state. The result of the litigation will almost inevitably leave one of the parents aggrieved. If children are permitted to relocate then it is likely that the nature of, and accessibility of, their relationship with the remaining parent will change. This is not to say that the quality of the relationship will diminish, but inevitably the structure and nature of the relationship will not be the same. Conversely, should a proposed relocation of children be refused and the primary parent be required to remain living in a location contrary to their wishes then that parent will have feelings of loss, unhappiness and bitterness together with the need to make adjustments in his or her own personal life, relationships, and ambitions. There may be an effect on the lives of new partners. This unhappiness and bitterness may impact on children in the household and on any previous cooperative and communicative relationship with the other parent.
The powers of the court under the Act extend only to making orders in respect of children. Whilst it is open for a court to permit or prevent the relocation of children, it cannot ordinarily make orders per se which prevent the freedom of movement of adults. Nevertheless, as is the case here, the mother understandably says that she would not move to [W] without the children.
Given that the best interests of the children are my paramount consideration, section 60B of the Act provides the objects of the relevant part of the Act which relates to children, and the principles underlying those objects as follows:
Section 60B
(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 60CC of the Act provides a number of mandatory considerations that the Court is to address and attribute weight to in determining the best interests of children. Those considerations must be referenced in respect of the proposals of the parties and the probative evidence given and adduced. The considerations are divided into “primary considerations” and “additional considerations”.
The primary considerations set out in section 60CC(2) of the Act are:
a)the benefit to the children of having a meaningful relationship with both of the children’s parents;
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are numerous additional considerations which I will reference below in respect of the evidence and the parties’ proposals to the extent that each may be relevant.
In arriving at appropriate parenting orders I am to follow a statutory and intellectual course of consideration starting with the presumption that is in the best interests of children for their parents to have equal shared parental responsibility. That presumption applies unless there are reasonable grounds for the court to believe that a parent or a person who lives with the parent has engaged in abuse of a child or family violence[3].
[3] section 61DA(2)(a) of the Act
Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility[4].
[4] section 61DA(4) of the Act
In the matter now before me both parents seek an order for equal shared parental responsibility. There is no evidence that the presumption would not apply on account of family violence.
The relevance of the presumption of equal shared parental responsibility is that it causes the court to make mandatory consideration of parenting regimes. Firstly, the court must consider whether it is in the children’s best interests for them to spend equal time between their parents and whether such an arrangement is reasonably practicable[5].
[5] section 65DAA(1)(a)(b) of the Act and MRR & GR (2010) 240 CLR 461
If, after consideration, the Court is of the view that equal time is not both in the children’s best interests and reasonably practicable then the consideration turns to whether the children spend “substantial and significant” time with each parent is in their best interests and whether it is going to be practicable[6].
[6] section 65DAA(2)(c)(d) of the Act
“Substantial and significant time” is defined in the Act as[7]:
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 and holidays; and
[7] section 65DAA(3)
b) The time that the child spends with parent that 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.
Further, section 65DA(5) of the Act provides that:
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 or 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 and 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.
Clearly, from this legislative pathway and the definitions above, the prospect of relocation of children can be highly relevant in considering notions of “equal time” or “substantial and significant time” and, in particular, whether such arrangements can be reasonably practicable.
Consequently, when confronted with a proposal for relocation, the Court is to consider each of the parent’s proposals as to the living and parenting arrangements for the children within the contexts of “equal time” and “substantial and significant time” in respect of both the children’s best interests and reasonable practicality of those proposals.
The Full Court in KB & TC[8], commented on the principles to be applied in determining parenting matters involving proposed relocation from the Full Court decisions in A & A(Relocation Approach)[9], and from the Full Court in A & A, and subsequently by the High Court in U & U (2002) FLC 92-122:
U & U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. U & U the High Court said the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to the relevant section 68F(2)(now S.60CC) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[8] (2005) FLC 93-224
[9] (2000) FLC 93-035
Those general principles for relocation cases have survived examination and various amendments to the Act. In Morgan & Miles[10] Boland J noted:
[10] [2007] FamCA 1230 at [80]
It follows from the exposition of the legislation, that earlier core principles:
· that the child's best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate "compelling" reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
· the child's best interests must be weighed and balanced with the "right" of the proposed relocating parent's freedom of movement,
remain valid.
There is regular debate as to whether a proposed move of only a short distance constitutes "relocation" in respect of the principles set out above or, alternatively, is it a situation properly addressed by simply considering options as to “time with” orders? In my view, any move of residence that causes a change in the nature of children's relationships with the other parent, and also with extended family, peers, schools and extracurricular activities, constitutes a relocation and brings those principles into play. It may be, however, that realistic alternative options allowing and assisting the maintenance of relationships are available and should be considered given the principles that a parent is not required to "justify" a proposed relocation and that freedom of movement of an adult remains a significant consideration[11]. Applying reality to these situations, the courts have urged both caution and reality testing of the proposal. In D & SV (supra) the Full Court at [37-40] noted:
However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we could caution against the making of orders that restrict the residence parent's freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a greater distance may render shared residence or meaningful contact difficult if not impossible.
The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangement.
Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children's lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court.
[11] (D & SV (2003) FLC 93-137)
The Evidence
The mother gave evidence by affidavit and was cross-examined. Mr M, her partner, also gave evidence. He was cross-examined.
The thrust of the mother's evidence was that she felt uncomfortable or awkward remaining in [H]. She is pregnant with Mr M's child and wishes to pursue life with him in [W]. There was evidence from both herself and from the father that she had experienced some difficulties, whether actual or perceived was not made clear, in the [H] community since her separation from Mr Russon. There was also evidence that she may be estranged to a degree from members of her own family whereas Mr Russon has maintained friendly relations with them.
Ms Duane's evidence was that she has been the primary carer of the children. Her evidence was critical of the father's involvement in the children's lives with the suggestion being that he had delegated the major responsibility for the children's care to her, with him maintaining a relationship with the children primarily through their shared sporting interests of [omitted].
The mother acknowledged that the children expressed preferences to stay in [W]. She acknowledged that they were settled there, had strong peer group relationships, and that [X] had only recently commenced high school, albeit at a venue some distance from [H]. She argued, however, that the children's views were not necessarily properly or voluntarily informed and that their relationship with her was of such strength that they would readily settle into [W]. The evidence of both Mr M and Ms Duane was that the children had a strong and positive relationship with Mr M.
Mr M's evidence was that his work commitments were in [W]. He had no desire to move to [H], despite the fact that he currently spends each second weekend and one night a week with Ms Duane at [H] and that he confirmed that his relationship with her is a committed and loving one. Strangely, in my view, he gave evidence that if the children were not able to relocate to [W] then he would consider moving to live at [H] but that he would give up his secure employment to do so. I found such a comment to be disingenuous and a flimsy attempt to influence my determination.
The father gave evidence and was cross-examined. He adduced no further evidence other than [X]'s semester 1 interim school report for 2013 which generally showed the child to be progressing on a "good" or "satisfactory" basis. Mr Russon argued that the children vehemently opposed a move to [W]. He said that they were settled in [H]. They have their extended families, friends and sporting interests in [H].
Mr Russon was willing to take on primary care of the children should Ms Duane elect to move to [W] without them, although this does not appear to be an option left for me. Mr Russon gave evidence that [X] had, in any event, been asking to live with him. Mr Russon accepted that [Y] preferred to live with the mother and would perhaps suffer some difficulties if removed from her primary care.
Mr Russon was critical of the mother's lack of involvement for him in the children's lives. He gave examples of not attending at school events "because I have not been invited". There was, however, little indication that he had been proactive in obtaining details of the children's events independently of the mother.
Mr Russon also alluded to difficulties that the mother faced in their [H] community. No particulars of these difficulties were forthcoming from either party, although it is open for me to infer that members of this small community had taken the side of Mr Russon over that of Ms Duane in relation to the marriage separation.
Mr Russon did not agree that it would be open for him to move to [W]. He noted that he had lived in [H] since a child and that all his family, work and personal connections were in [H].
The court also had the benefit of a comprehensive and considered family report from Dr N, who is a clinical psychological well experienced in preparing reports and giving evidence in family law matters. Her report is dated 18 December 2012 and prepared after interviews on 6 December with the parents and Mr M and observations of the children with the adults.
Dr N describes the tensions in the marriage emanating from religious differences between the parties highlighted by being in such a small regional centre.
Significantly, the mother conveyed to Dr N that she had "sacrificed her dignity" at the time of separation in perhaps continuing to unsuccessfully pursue a reconciliation. Mr Russon confirmed the mother's difficulties in this regard and as noted at paragraph 6 of the report as follows:
Mr Russon acknowledged that his decision to separate had been a shock for Ms Duane, and he also understood that she had felt very embarrassed that her marriage had failed and the subsequent rumour and speculation in their community. Mr Russon claimed that Ms Duane had separated herself from her family, friends and community due to her embarrassment. He gave the example that she does not speak to her brother any more, because her brother has maintained a friendly relationship with him.
Mr Russon, to Dr N, highlighted the strength of the children's views and, in particular, his concerns in respect of [X]. At paragraph 9
Mr Russon is reported as follows:
Mr Russon claimed that he is most concerned about the children if they are allowed to move to [W]. He believes that [X] is very distressed after thoughts of moving ("he really doesn't want to go") and emphasised that he believes [X] is a very sensitive boy. He claimed that [X] has had number of emotional outbursts and he inferred (sic) that he is psychologically vulnerable. He believed that [X] would prefer that his mother and father were still together.
Dr N interviewed [X] who impressed her as follows:
...as a shy and extremely sensitive boy. Like his mother, [X] had much difficulty conveying his meaning. He often paused before responding and struggled with his verbal skills. He had variable eye contact.
Dr N noted [X]'s stated views to remain at [H] and attend [omitted] Secondary College with a number of his friends from primary school. Dr N noted [X]'s concern that a move to [W] would cause him to miss his family and "became teary at the thought of not seeing them regularly". [X] preferred his mother to remain living in [H] with a preferred option to live with her. [X] conveyed a good relationship with Mr M.
Dr N's assessment of [X] was:
Assessment of [X] indicated that he is a boy with some social skills problems and who struggles to express himself verbally. He presented as a sensitive boy who is likely to have some problems in the social world. He appears to take the pessimistic and wary view of new experiences. He expressed clear preferences to stay in [H], but the themes in his narrative strongly suggested that this is motivated by fear of the unknown and a desire to stay with what is known and familiar. Both parents identified [X] as being a very sensitive boy inclined to emotionality.
Dr N found [Y], although the younger child, to be more confident in his demeanour and presentation. It was noted that he had attended an orientation at a school in [W] and that he had enjoyed the visit and made some "tentative new friends". Dr N elicited from [Y] that he did not want to move to [W] and identified his similar concerns to his brother about missing friends and school.
The family report suggests that [Y] too enjoys a good relationship with Mr M.
In her observations of the children with the parents, Dr N noted that the boys could be uncomfortable in discussing the contentious issue of a proposed move with their father. It was observed that they tended to avoid his questions, although such discomfort may not have been apparent to Mr Russon who seems to have been intent on emphasising his own case and positive points in support of that case.
Dr N conducted clinical and personality profiles in respect of the parties with results that were unremarkable but significantly concludes as to Ms Duane as follows:
Ms Duane’s PAI results suggested that she appears to have a generally positive self-concept, but may, at times, take an uncritical self-evaluation. She does describe approaching life with a clear sense of purpose and distinct convictions, but this may represent more of an effort to make a favourable impression than an accurate self-perception. Due to this style of thinking,
Ms Duane may be inclined to attribute responsibility for any setbacks that do occur to external sources (ie, someone or something else) than to her own personal failings in an effort to maintain her positive self-image.
Dr N elaborated on the mother's demeanour and personality in her evidence in court. She described Ms Duane as:
A pretty well-functioning person despite her vulnerability, but she will feel immediately less stressed by moving to [W].
Dr N described the mother has having an unusual psychological profile with unusual verbal skills. She described a sense of egotism together with a different profile noting that the mother can feel "uncomfortable" or "awkward" in some social situations. She noted the mother's wish for a fresh start but that such a desire does not always provide a solution. Nevertheless, in her report at page 16 Dr N concludes:
Despite some difficulty articulating her position, I eventually understood that she feels constantly re-humiliated by the close proximity and reminders of Mr Russon and is seeking a fresh start.
Dr N identified the balance required between the two major considerations in this matter being, firstly, consistent preferences articulated by the children that they remain in [H] as against, secondly, the mother being the primary parent and her right, such as it is, to freedom of movement together with the effect on her happiness and demeanour and vicarious impact on her parenting of the children should she be required to remain in [H] against her will. The thrust of Dr N's recommendation was for a move for the mother to [W]. At page 17 of her report Dr N concludes:
If the relocation to [W] occurs, I expect the children will experience significant stress and difficulties with the changes they have to face in relation to their schools, sporting activities and involvement in the community activities which appear to make these boys feel connected. However, with some support I consider that this can be managed and that the children will adjust in the short or middle term.
...
If the children remain living in [H], and Ms Duane remains there too, I consider that there is likely to be a psychological impact on Ms Duane's functioning. She appears to be very unhappy and is hoping that a relocation will provide her with new opportunities. How much this is likely to affect the children is impossible to predict, but some adverse effect on Ms Duane is very likely.
Section 60CC Considerations
Section 60CC(2)(a) – The benefits of the children having a meaningful relationship with both of the children’s parents.
The Full Court in McCall & Clark[12] considered the concept of “meaningful relationship” and concluded that it involved both a “prospective approach” and “qualitative rather than quantitative” aspects of relationships. That is, the Court must look to the future relationship between children and parents and make orders which assist in that relationship being meaningful, significant, beneficial and successful. The success and benefit of such relationships depend on quality rather than simple quantity of time spent between a child and a parent. The relevance is, of course, obvious in matters involving relocation where quantity of time may be reduced and the configuration of time changed, but the quality of the relationship between child and parent may remain or even be enhanced by different regimes of time. Further, it is usually necessary to consider the current nature of the relationship between child and parent in determining appropriate prospective orders.
[12] (2009) FLC 93-405
Whilst the consideration of assisting or maintaining a meaningful relationship for children with parents is a “primary” one, it is only one amongst many relevant considerations which must be balanced and to which weight is to be attributed in making an ultimate determination in the best interests of the children. The Full Court in Champness & Hanson[13] said:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make Orders most likely to promote the child’s best interests. In seeking to achieve that objective, s66CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[13] [2009] FamCAFC 96 at 103
The evidence of both parties and the Family Reporter is that these two children have an established, successful and beneficial relationship with each of their parents. The nature of those relationships differs in its form and quantity of time. The father enjoys his relationship with the children through shared interests. He provides a continuing relationship with extended families on both sides.
The relationship between the boys and the mother reflects her primary role. She is more involved in their day-to-day activities. She is involved in their schooling. The indication on the evidence is of a sense of dependency and connection for [X] and [Y] with the mother accordingly. At page 16 of her report, Dr N opines:
However, if viewed in terms of emotional attachment, it seems likely that the children’s mother has always been their primary carer and the source of their sense of security. Their attachment to their father, although strong, appears not as close as with their mother. If changes in the parental situation are to occur, a less uncertain way forward for the children is for them to receive support through the changes they face with their primary carer. This, in my opinion, exposes the children to the least risk and maximises their adjustment for the future.
The distance proposed in the relocation of the children is not great. The mother’s proposal allows the continuation of the formal arrangement set in the orders of 2010 and perhaps even increases it. The father argues that a move will, however, take away the opportunities for spontaneous and informal interaction between he and the children and also with their extended family in the small community of [H]. In essence, however, the evidence is that the move proposed by the mother would not seriously impact on the structure of the relationship between the children and their father, and it could continue fundamentally in its current form and not detract from the activities currently enjoyed jointly by father and children.
Section 60CC(2)(b) – The need to protect the children from physical or psychological harm from being subjected to, or exposed to, neglect or family violence.
There is no evidence in this matter relevant to this section, even within the broad definition of family violence in the Act. The mother alludes to some emotional and psychological factors relevant to her relationship with the father and her living in [H]. These matters are dealt with below in respect of the parties’ capacity to parent.
Additional considerations – Section 60CC(3)(a) – Any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
The weight of the evidence is that the children’s stated preference is to remain in [H]. The father says that it is [X] who is most vigorous in this view, to the extent that he would choose to live with the father rather than move to [W]. On the evidence before me, it is probable that both boys are very much aware of the dispute between their parents and of each of their parents’ views as to the proposed relocation.
Mr Russon appeared both set in those views and assertive in putting them. In the witness box, he was unable to contemplate any positives for the boys in a move to [W]. It is highly likely, in my view, that he imparts his strong views on the boys either directly or indirectly. He assertiveness in emphasizing the positives of his position of the family report interviews and in the presence of the boys leads me to this conclusion:
Dr N observed [Y] as more confident in his demeanour and presentation than was [X]. [Y] also said that he did not want to move to [W], noting concerns about missing his friends and school. Nevertheless, the family report indicates that [Y] was able to see positives in the prospect of a move to [W], and was positive about his orientation day at the [W] school. Dr N concludes in respect of [Y]:
Assessment of [Y] indicated that he has better verbal and social skills than his brother. [Y] appeared to be a rather resilient child who has a level of self-possession and confidence that his brother appears to lack. Like [X], he expressed strong preferences to remain living in [H], but again this seemed to be partly related to a disinclination to change and fear of the unknown.
I must, of course, consider the effect on these children of making orders that are contrary to their stated views. In this respect, I note the comments of Dr N as to the demeanour and personality of each of the boys, and the nature of their relationships with their parents.
On the evidence and my observation of the parents in the witness box, I conclude that it is likely that they have each, at least passively, encouraged the children towards their own particular preferences. The mother has alluded to the prospect of living on a country property and having pets, which is something that is attractive to the boys. She has taken them to orientation days at her preferred schools in [W]. The father for his part has emphasised to the boys the positives of remaining in [H]. Within this context, and as observed by Dr N, it is not unexpected that the boys’ preference to remain in [H] reflects, as much as any other factor, “a disinclination to change and a fear of the unknown.”
I asked Dr N her opinion as to the effect on the children and their relationships of a decision contrary to their stated preferences. Dr N did not consider that this would be a weighty problem for the children. She noted that [X] was very young for his age and inclined to be a follower rather than a leader. She repeated her observations of [Y] as set out in the family report. Her opinion was that, whilst there would be short-term difficulties associated with the change, they could be adequately managed and addressed by appropriate [support].
Section 60CC(3)(b) – The nature of the relationship of the children with each of their parents and other persons (including grandparents or other relatives of the children).
The children, according to Dr N, are strongly attached to each of their parents and have a meaningful relationship with each.
The mother is and always has been the children’s primary carer.
The evidence is that the children have a close and beneficial relationship with Mr M.
The children have a loving and successful relationship with their father. That relationship is focused on shorter periods of time and towards joint sporting interests. The father also gives accessibility to the children to their extended family on both sides, and who generally live in the smaller community of [H].
Section 60CC(3)(c) – The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship with the children and the other parent.
Despite communication difficulties between the parents post-separation, these children are however seeing their father on a regular basis. He has not always taken up all of the time available to him pursuant to court orders.
The father criticises the mother’s failure to actively involve him in activities outside his shared sporting interests with the children. He complains of not being invited to school concerts and events. After seeing and hearing both parents in the witness box, I expect that this dispute reflects the nature of their own relationship and the separation of parenting tasks both during and post the marriage. The mother has assumed the role of day-to-day carer for the children. She attends to their school needs. The father’s time with the children is focused around their interests in [sports omitted]. I find his complaints against the mother to be unfounded and it has always been open to him to independently obtain notice of school events and similar. I do not find the father’s complaints to be indicative of any propensity in the mother to exclude him from the children. To the contrary, the mother proposes that he has even more time with the children than he now enjoys. She would assist with the travel.
Section 60CC(3)(d) – The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child, or other person (including any grandparent or other relative of the children), with whom they’ve been living.
A move to [W] would mean a change of school for [X]. He is described as a sensitive boy who is a “follower rather than leader.” He has only just commenced high school. He travels on a bus for an hour each way each day and does so together with up to five of his friends from primary school. He is progressing satisfactorily at school. It is inevitable that a change of school and removal from his peers would cause some stress and discomfort for [X], particularly in that the school year is now into its second term and a change of school now would certainly be less than ideal.
[Y] is still in primary school. He made positive comments to the family reporter following the orientation at the [W] school. Dr N observes him as a stronger personality than his brother and I infer that he would be more able to deal with the stresses of a change of residence.
In other respects, the children’s relationships would not be unduly negatively impacted. They would continue to see their father each second weekend and, in fact, for one night during each week on the mother’s proposal. Their relationships with extended families on both sides, on the father’s evidence, is facilitated by him. This could continue.
The removal of these two children from being settled in their country town environment would require adjustment. Nevertheless, they necessarily endured changes and adjustments by the very reason of their parents’ separation, the different configuration of time and relatively limited time they spend with their father, and the introduction of Mr M into their lives. The evidence suggests that they have confronted and adapted to these changes successfully.
Section 60CC(3)(e) – The practical difficulty and expense of the children spending time with and communicating with a parent, and whether that difficulty and expense would substantially affect the children’s rights to maintain personal relationships and direct contact with both parents on a regular basis.
The mother, not surprisingly, emphasises the short distance between [H] and [W], and that she would assist with the travelling, and that the boys could continue the current time with their father and continue to enjoy their [sport omitted] in [H]. The father, also not surprisingly, points to possible logistical difficulties. He notes that there would be tight time considerations on the boys getting from [W] to [sport omitted] training on a weeknight. He notes that he would need to leave work to collect them. On the other hand, however, he emphasised the flexibility of his employment when arguing that he had the capacity to care for the boys should they live with him.
The distance between the two towns is around 95 kilometres. The driving time would be an hour. The mother is willing to assist with the travel. The father’s work hours are flexible. There would inevitably be some inconvenience caused by the move to [W] but, on the evidence as a whole, I cannot find that there would be any practical aspects which would make the mother’s proposal unworkable and in the context of the Legislation would be reasonably practicable.
The father’s proposal would have the mother remaining in [H]. She is in a relationship with Mr M. They are soon to have a child. If Mr M is to live in [H] (and not give up his long-term employment), then there would be some expense incurred by him and practical difficulties in travelling each day from [H] to [W] and because he is required to have very early morning starts on some days. However, again within the context of the Act and considering all of the evidence, including that Mr M currently spends both weekends and week nights in [H], I find the father’s primary proposal to be reasonably practicable.
Section 60CC(3)(f) – The capacity of each of the children’s parents and any other person (including a grandparent or other relative of the children), to provide for the needs of the children, including emotional or intellectual needs.
The mother has been the primary carer of the children. She has done so to date without contest from the father. All the evidence suggests that she has done so successfully.
The father proposes that he could assume the role of primary parent. He is untried in this role. The mother criticises him for not taking up all of the time available for him with the children, particularly during school holidays. I have found that his blame of the mother for his lack of involvement in school activities is unfounded and disingenuous. He starts work early in the morning but says, without evidence from his employer, that his work hours can be “flexible”. He adduced no evidence from family members or others of available support for him as a sole parent. The evidence leads me to conclude that this father has been content to delegate the primary care of the children to the mother. He has enjoyed the children specifically at their sporting interests. He has to date shown little or no inclination to assume any greater role.
A major issue in this matter is the mother’s emotional health and the impact, if any, on her parenting capacity of being required to remain living in [H]. Both parents and Dr N allude to the mother’s demeanour and emotional vulnerability following separation. Although particulars were not forthcoming, it is open for me to find that the separation of these parents within the small community has impacted on the mother’s emotional health. Dr N sees Ms Duane as being “constantly re-humiliated by the close proximity and reminders of Mr Russon and is seeking a fresh start” but says that this is likely to abate over time. Ms Duane alludes to the actual and anticipated contact with
Mr Russon, family members and community members for her in [H]. Although Dr N observes elements of self-confidence and being an extrovert, all of the evidence points to Ms Duane enduring social and emotional difficulties in [H]. Dr N concludes:
If the children remain living in [H], and Ms Duane remains there too, I consider there is likely to be a psychological impact on
Ms Duane’s functioning. She appears to be very unhappy and is hoping that a relocation would provide her with new opportunities. How much this is likely to affect the children is impossible to predict, but some adverse effect on Ms Duane is very likely.
Ms Duane has herself always lived in [H]. She works in [H]. Her family live in [H]. Her marriage was situated in [H]. She owns a house in [H]. It is true that a move to [W] will be something of an unknown for her and as to whether it has a positive effect on her emotional health. She has, however, commenced a new relationship. She is expecting a child. These are aspects in her life of “moving on”. I am able to conclude, therefore, on the evidence, that should she be required to remain living in [H], then she will not do so happily and that there will be further strains caused for her new relationship, and vicariously there is strong potential for a negative impact on her parenting. It is true that she has parented these children successfully whilst living in [H] in the almost three years since separation. She has always done so, however, in anticipation of moving from [H]. This potential move for her is not triggered only by her new relationship with Mr M. She has indicated to the father and the children since separation a desire to move from [H]. Whilst the mother adduces no discreet psychological evidence on the issue of impact on the parenting capacity, I note and place weight on the comments of Dr N in this regard.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
The evidence is that these two young children are able to articulate their preferences. This must be seen, however, against them living their formative years in [H] and virtually all of their connections being with that community. Any stated preference must be seen against the unknowns of any anticipated change and their maturity and rationality of stated preference must be afforded appropriate wright accordingly.
Section 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact of any proposed parenting order under this Part will have on that right.
This consideration is not relevant to the facts in this matter.
Section 60CC(3)(i) – The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the children’s parents.
As I have found above, the father has been content for the mother to assume a primary parenting role for these two children post separation. He has been equally content to limit his own time for the children. Having seen and heard the father in the witness box, he impressed me as being somewhat self-focused. Many of his responses were prefaced by the phrase “I want …”. I glean that he would be content with a continuation of the status quo with the mother continuing to take primary responsibility for the children but with them being available and accessible to him without any undue inconvenience for him.
The mother impressed me as being child-focused. She has fulfilled her responsibilities as a parent. She may not have kept the father directly informed of each and every school event but he is equally culpable for not being proactive on his own part
Section 60CC(3)(j and (k) – Issues of family violence and family violence orders.
These sub-sections are not relevant to my determination.
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 children.
Any issue of relocation by its nature increases the potential for further litigation, whether the order be for the primary parent to relocate or remain. If the mother relocates from [H] with the children then she would do so against the background of always having lived in [H].
Dr N noted that a successful resolution of the mother’s personal difficulties and unhappiness might not necessarily result by a simple geographical move. Similarly, there is potential for the boys or either of them to experience adjustment difficulties in moving from a familiar and stable environment although Dr N does not seem to place crucial or determinative weight on this consideration. To the contrary, if the mother is to remain unhappily and against her will in [H] then there is a potential for her to look at other options or for her parenting to be impacted to such an extent that there is further litigation.
Discussion and conclusions
I am satisfied that the presumption applies and that it is in the best interests of these children for their parents to have equal shared parental responsibility. Both parties seek such an order. The orders of July 2010 provide by consent for equal shared parental responsibility. Whilst there is an ongoing lack of communication between the parents, they appear to have settled into their roles and understanding of each other’s role. I do not accept that the mother has shown an inclination or propensity to act unilaterally in respect of the important matters for these children simply by reason of her taking the children to orientation days at [W] schools. It may be, of course, that communication between the parties is, in fact, improved by a move for the mother away from the constant difficulties and reminders that seem to confront her in [H]. The relationships for these boys have settled each into their own style with mother and father and within that context each is meaningful and successful. I am satisfied therefore that the presumption is not rebutted as being contrary to the children’s best interests. The presumption continues to apply by reason of there being no issues of family violence.
This is not a matter where the children spending equal time between their parents is, or has ever been, contemplated. Neither party seeks such an order, or argues that it would be in the children’s best interests, although such a regime might be reasonably practicable, with both living in [H]. The parties do not communicate well. They each have assumed and permitted different roles as parents. An equal time regime would not be practicable should the children live with the mother in [W].
The orders proposed by the mother fit with the definition of “substantial and significant time”. The children would be with their father on both weekends and weeknights. They would enjoy mutual pursuits and interests. The father says now that he would accept such a regime, giving him some weeknight time with the children, should the mother remain in [H], and despite his consent to orders in July 2010 in the traditional form of the children only spending time with him each alternate weekend and one half of the school holidays, together with special days.
An issue is whether substantial and significant time in this form is reasonably practicable if the children live in [W]? The travel time and distance is not onerous. I am not satisfied that there would be inconvenience to either of the parties caused by such a travel which would preclude it occurring. I am satisfied that the mother’s proposal is a workable and reasonably practicable one. It has the advantage of breaking the gap fortnightly weekends for the boys with their father.
I must now determine whether the children’s best interests are served by them living primarily with the mother in [H], living with the mother in [W], or living primarily with the father in [H]. The last of these options may be academic in that the mother indicates through her counsel that she would not leave [H] without the children. Similarly, the father does not vigorously pursue primary care of the children if the mother remains in [H].
This mother has been the conceded and successful primary parent of these children. I am satisfied that she has parented the children under some personal and emotional difficulties since separation. Dr N alludes to potential psychological impact on her functioning if required to remain in [H]. There is no evidence that she has undertaken any counselling, although it is clear that she has had a consistent and strong desire to remove herself from [H] since separation. Both parties give evidence consistent with the mother experiencing emotional difficulties in [H] since separation.
The children’s primary attachments are with their mother. This does not detract from the nature of, or success of, their relationship with their father. It is a good and positive relationship for these two boys. The father presents as a good role model. He has simply not sought to take on the responsibilities of primary parent. If he does so now, then it is only as a default position. I am satisfied that the preferences of these boys is to remain living primarily with their mother. I am satisfied that their best interests are served in them doing so.
The mother’s proposal for the boys’ time with the father should she move to [W] is a reasonably practicable one. This proposed relocation does not bring with it the usual difficulties of distance and expense.
I must give weight and consideration to the children’s stated views and preferences. Undoubtedly they prefer the status quo, and to remain living in [H]. This consideration must be weighed against the other outstanding consideration in this matter, being the mother’s happiness and capacity as primary parent of the children. I place a deal of weight on the evidence and opinion of Dr N. She is an experienced practitioner in Family Court matters. She recognised the quandary here in balancing the weight of the children’s stated views versus the happiness and capacity and freedom of movement of the mother, being the major balancing considerations. Dr N recognised that the rationality and maturity of the children’s views are influenced by an obvious and understandable desire to maintain a status quo. I find that the children are understanding of their father’s opposition to such a move. In the main, however, I accept Dr N’s opinion that their views are influenced by a fear of the unknown. Their particular personalities are relevant, both as to the veracity of their views and wishes, and also as to their ability to cope with a decision contrary to those views. I accept Dr N’s conclusion that the move to [W] would create adjustment difficulties but that proper support will help them manage those difficulties and their adjustment “in the short or middle term”. My optimism is heightened by the obvious good relationship that they enjoy with
Mr M. There will be a new sibling in the household. Their relationship with their father and other important people in their lives should not suffer other than by some inconvenience. These are all factors which should assign any adjustments.
I accept that the mother is, and would remain, unhappy living in [H].
I am not satisfied that her unhappiness would be relieved simply by
Mr M moving to [H], as for him to do so would be only with the greatest of reluctance and would not alleviate whatever social difficulties she faces in [H]. Ms Duane and Mr M are soon to have a child of their own. The evidence is that he will become the primary financial provider for the mother and for the family unit. I am satisfied that the children’s best interests are served by their primary parent’s capacity not being impacted negatively by her own unhappy demeanour. Whilst I accept that she has parented successfully in the interim since separation whilst being unhappy in herself, I place some weight on Dr N’s opinion as to that “there is likely to be a psychological impact on Ms Duane’s functioning” of being required to remain in [H].
[X]’s schooling is a major consideration to be balanced. He has just started high school. This is an important milestone for him. A change of school at this time would be less than ideal for him. There are likely to be some adjustment problems for him given his personality. However, a separation of siblings is not an option on the evidence of the capacity of the parents and the boys own personal relationship. These two boys share interests. They have always been together and particularly during the adjustments required following their parents separation. Neither parent argued for a separation of siblings. However, on balance, and whilst a most relevant and weighty consideration, I do not find that the need for [X] to change school would counter balance the considerations in favour of the children moving with the mother to [W].
Consequently, and taking into account all of the relevant considerations under section 60CC of the Act, I am of the view that the children’s best interests are served by them being able to relocate with their mother to live in [W].
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 19 April 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
-
Jurisdiction
-
Procedural Fairness
3
4