Russon and Duane
[2009] FMCAfam 464
•22 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RUSSON & DUANE | [2009] FMCAfam 464 |
| FAMILY LAW – Parenting – relocation – impact of relocation on children’s time with father – effect of relocation on meaningful relationship considered – children’s best interests served by permitting relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Morgan & Miles [2007] FamCA 1230 AMS v AIF; AIF v AMS [1999] 199 CLR 160 U v U [2002] 211 CLR 238 A v A: Relocation approach (2000) FLC ¶93-035 Illidge & Norton [2008] FMCAfam 1255 F & F (2008) 38 Fam LR 52 D and SV (1997) FLC ¶93-137 B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 Tait & Densmore [2007] FamCA 1383 |
| Applicant: | MS RUSSON |
| Respondent: | MR DUANE |
| File Number: | DGC 2055 of 2008 |
| Judgment of: | McGuire FM |
| Hearing date: | 22 April 2009 |
| Date of Last Submission: | 22 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 22 June 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Nicholson |
| Solicitors for the Respondent: | Mahloko-Boardmans Solicitors |
ORDERS
That all previous orders be discharged.
That the mother and the father have equal shared parental responsibility for the children of the marriage [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1998 (“the children”).
That the children live with the mother.
That the mother be permitted to relocate the children to reside in the [B] municipality.
That the children spend time with and communicate with the father as follows:
(a)Each alternate weekend from 5.00 pm (or such other time as agreed between the parties from time to time) on Friday until 7.00 pm on Sunday (extending to Monday in the event of a long weekend or student-free day).
(b)For a period of one week during the Victorian gazetted summer school holidays in each year commencing at 9.00 am on the third Saturday in January in each year.
(c)For two further weeks in the summer school holidays and for a week in each of the Victorian gazetted term school holidays such times to be exercised at the option of the father but conditional upon the father giving the mother not less than 28 days notice in writing of his intention to exercise such time with the children.
(d)Should Father’s Day fall on a weekend when the children are not otherwise with the father, then from 10.00 am to 5.00 pm on the Father’s Day but should Mother’s Day fall on a weekend when the children are with the father then such time with terminate at 10.00 am on the Sunday.
(e)From 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in 2009 and in each alternate year thereafter.
(f)From 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in 2010 and in each alternate year thereafter.
(g)From 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday in 2011 and in each alternate year thereafter.
(h)By telephone at any reasonable time but specifically between the hours of 6.30 pm and 7.00 pm each Tuesday and Thursday and on those Sundays when the father is not otherwise spending time with the children pursuant to these orders.
(i)Such other times as agreed between the parties from time to time.
That the father’s time with the children pursuant to these orders be suspended from 27 December in each year to 9.00 am on the third Saturday in January in each year provided that the mother is on holidays with the children during this period.
That for the purposes of changeovers for these orders the parties meet at an agreed location at [E] in Victoria at the designated times or otherwise as agreed.
That the mother authorise any school attended by the children to provide the father, at the expense of the father if any, with copies of all school reports, school notices and invitations to parent teacher interviews.
That the father be at liberty to attend any school related events.
Pursuant to Section 65DA(2) 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 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 MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2055 of 2008
| MS RUSSON |
Applicant
And
| MR DUANE |
Respondent
REASONS FOR JUDGMENT
The application
The applicant is Ms Russon. She filed an initiating application on 13 June 2008. She seeks parenting orders in respect of three children, [X] born [in] 1994 (aged 14 years), [Y] born [in] 1996 (aged 12 years) and [Z] born [in] 1998 (aged 10 years).
The children currently live with the mother pursuant to orders made
in the Federal Magistrates Court of Australia on 26 July 2006. Those orders see the children spending time with the father, Mr Duane, fortnightly between Friday at 5.00 pm and Sunday at 7.00 pm together with one week in the summer holidays and another week in the mid year school holidays to be exercised at the option of the father. There is also provision for the children to spend special days with their father.
The mother seeks an order that she be able to relocate with the children to live in [B]. She currently lives at [U] in Victoria.
The father opposes the relocation and seeks that the mother’s application be dismissed. He does not pursue orders that the children live with him. His response filed 1 July 2008 simply sought
the dismissal of the mother’s application and the retention of the status quo. The family report was released in early 2009. It raised the possibility of the children spending some weekday time with the father but dependent upon the ultimate result of the mother’s application
to relocate. The father then filed an amended response on 1 April 2009 seeking additional time with the children each alternate Thursday evening from 5.30 pm to 7.30 pm.
Background
The parties commenced cohabitation and were married in 1988. They separated in May 2000 and divorced in 2002.
The mother is remarried to Mr R. They have a five year old son. The father has also remarried. There are no children of that relationship.
The mother and her husband live in [U] and run a [omitted] business.
The father lives in [R], Victoria, but is building a house in [M].
The father is employed at [N]. He works Monday to Friday plus some Saturdays.
The current driving time between the parties’ homes is about
15 minutes. This will increase to about 25 minutes when the father moves to the [M] property.
Mother’s proposal
The mother proposes that the children move with her and her husband to live at [B]. She suggests that the parties share the travelling and meet at [E]. The best evidence is that the time for travel between the father’s home at [R] and [B] would be approximately two hours. [E] is roughly equidistant or about one hour from [R] and from [B].
The mother proposes that the existing orders whereby the children spend each second weekend with their father continue. This would therefore involve travel for the boys each second weekend and in total some four hours for the return trip.
The evidence
The Court was assisted by a comprehensive family report prepared
by Dr W. The reporter had the advantage of meeting with each of the boys and eliciting their views as to the proposed relocation. The reporter did not provide a definitive recommendation for or against relocation. Dr W was not required by either party for cross-examination.
The applicant mother relied on two affidavits filed 13 June 2008 and
11 July 2008respectively.
The mother represented herself during the proceedings. She was cross-examined as to the contents of her affidavit material.
The father deposed to and relied on two affidavits of himself. They were filed 1 July 2008 and 1 April 2009. He also adduced evidence from his wife, Ms D. The father had the benefit of legal representation. He was cross-examined. Ms D was not required for cross-examination.
The law
It is long recognised that matters of this type involving an element
of relocation of children are difficult to determine. Inevitably there will be an issue of “unfairness” argued by both parties and felt by one or the other depending upon the ultimate result.
Despite the limited ambit of the dispute between these parties,
the order that I am to make is a parenting order. This is so even though the father does not seek an order for the children to live with him. Consequently, I must regard the children’s best interests as the paramount consideration pursuant to s.60CA of the Family Law Act 1975 (“the Act).
Pursuant to s.61DA of the Act I am to apply a presumption that the parents have equal shared parental responsibility for the children unless such a presumption is rebutted by evidence that such orders would not be in the children’s best interests or negatived by findings of family violence. There was from either side no argument that the presumption should be rebutted or negatived.
The legislative process then requires me to consider whether
the children should spend equal time with each of their parents. This is not an issue in this case as the father does not seek equal time.
However, I am also to consider in the alternative whether it is in the best interests of the children for them to spend “substantial
and significant time” with the father. That concept is defined
in s.65DAA(3) of the Act as follows:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Again, I note that the father’s amended application, and following
the release of the family report, is to spend some weekday time with the children being an evening each second Thursday. It is also the father’s case that he has regular involvement in the children’s sporting activities, notably [sport omitted], during week time.
In determining whether “substantial and significant time” is in the children’s best interests I must consider whether it is “reasonably practicable” to do so.[1] I receive some assistance in this determination from s.65DAA(5) of the Act, in that I must have regard to:
[1] S.65DAA(2)(d).
(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… substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As a starting point it is useful to look at the objects and principles
of Part VII of the Act and especially so, in my view, in respect of the presumption of equal shared parental responsibility and the application before me being one to relocate the children. Section 60B of the Act provides:(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).
It is noteworthy that the Act itself does not specifically refer
to relocation as an isolated concept. Nor, as noted by her Honour Boland J in Morgan & Miles[2], does it explicitly prohibit relocationor apply a presumption against relocation. Rather, a proposed relocation is a matter to consider, with many others, in making an order which is ultimately in the best interests of the children.[2] [2007] FamCA 1230.
I am assisted in determining what is in the children’s best interests
by considering the matters set out in s.60CC of the Act. That section firstly deals with two primary considerations in s.60CC(2). They are:(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act then obliges me to look at, where relevant, a number
of additional considerations. These additional considerations as set out in s.60CC(3) are:(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Further, the Act at s.60CC(4) provides as follows:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Whilst the notion of “relocation” is not specifically referred to in the legislation, it is clear that many of the considerations that I make
in determining the best interests of the children are related to and relevant to the factual situation in this case. There has been a great deal of academic debate following the amendments to the Act in 2006 as to the effect of those amendments on relocation applications and in particular in relation to the concept of “meaningful relationship” and the presumption in s.61DA of the Act.This in turn has raised the issue as to the relevance of authorities prior to the 2006 amendments.
It seems clear that the relevance of previously accepted authorities
in relation to relocation cases remains. Her Honour Boland J in Morgan & Miles (supra) makes a comprehensive study of the current legislation in relation to the previous authorities. Her Honour says
at [80]:It follows from my 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.
It is clear that her Honour was adopting and applying the principles that had previously been laid down in leading and well known decisions such as that of the High Court of Australia in AMS v AIF; AIF v AMS[3] and in U v U[4] and the Full Court of the Family Court of Australia in A v A; Relocation approach[5].
[3] [1999] 199 CLR 160.
[4] [2002] 211 CLR 238.
[5] (2000) FLC ¶93-035.
A helpful summary of the law and extraction of the principles
in relocation cases was made by Neville FM in Illidge & Norton[6]
at [13] where his Honour says, and repeating the same summary from an earlier judgment in F & F[7]:[6] [2008] FMCAfam 1255.
[7] (2008) 38 Fam LR 52.
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders. Drawing from the authorities listed, those principles may be summarised as follows:
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. P v P, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80], Hayne J, [171]; Bolitho v Cohen, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]). Freedom of movement, however, takes second place to the paramount interests of the child.
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
Whilst not specifically argued by either party, the nature of the mother’s proposed relocation being the relatively short distance from [U] to [B] which I am told will oblige the children two hours’ travel each way and the father, on the mother’s proposal, some four hours’ driving per fortnight, relates to the principles set out above in respect of relocation. The Full Court of the Family Court in D and SV[8] considered this issue. Their Honours said at paragraph [78,282]:
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 arrangements.
[8] (2003) FLC ¶93-137.
However, as the Full Court in B and B: Family Law Reform Act 1995[9] said at [84,195]:
However, even where the relocation only involves one or both parents moving from one suburb to another or to a nearby town, the degree of previous contact with the children is almost inevitably reduced or changed. Once it is accepted within our society that parents may separate and, if married, may divorce, this consequence inevitably follows. Even in cases where the distance between households is not great, practical considerations place restrictions upon the free contact which the children had previously enjoyed with one or other parent. Issues of availability of transport and its cost, the availability of the children because they are at school or at recreation, the availability of the other parent because he or she is employed, the ability to take leave from work to coincide with school holidays, the wishes of the children, all represent practical limitations…
The essential aim of the Court is to protect and advance the best interests of the children, and it makes orders which grapple with these practical difficulties as best as may be, commonly where the children are of school age, focusing upon weekends and school holidays.
Discussion –Section 60CC factors
[9] (1997) FLC ¶92-755.
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The mother has historically been the primary carer of the children. There is no issue as to them having a full, beneficial and meaningful relationship with her.
The question for me is the nature of the children’s relationship
with their father, both current and in the future if the relocation was
to be permitted. There is no doubt that the father’s time with the children, despite geographical proximity, has been fairly limited.
This appears to have been at the father’s choice. He has spent time with the boys each second weekend. He has spent block periods of one week in the summer school holidays. He has available to him a further week in the mid year school holidays. In the last year, at least,
he chose not to exercise that holiday time. I accept the mother’s evidence that she has encouraged the children to spend further time with the father by some years ago suggesting to him that he spend Wednesday nights with them. I accept that she has also encouraged more school holiday time.
It is clear that the father has spent time with the children over and above that set out in the orders by attending [sport omitted] training on weeknights. I understand that the [sport omitted] season occupies some 14 weeks of the year. I accept, however, the submission put by counsel in final submissions that “the father may have limited time but regular involvement with them outside of the Court orders”.
The task for me is to consider the current nature of the children’s relationship with their father and the impact on that relationship, if any, by virtue of the proposed relocation.
Justice Cronin in Tait & Densmore[10] at [170] says in relation to this point:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
[10] [2007] FamCA 1383.
I am of the view that a “meaningful relationship” involves much more than simply time spent by a child with a parent. Indeed, time may
be only one of a number of relevant ingredients to the definition
of “meaningful”. Such must be taken with the inevitable evolving of children’s relationships generally, as well as with their parents,
as they become older, experience life’s offerings, and investigate various interests of their own.
At the moment the father’s relationship with the children involves
a formal and set period each second weekend. He currently enjoys other time with them at their [sport]. The nature of the relocation
is that it will not alter weekend time or holiday time with the father albeit with some further obligations as to travelling. A relocation may, however, have an effect on the father’s participation in the boys’ [sport]. Alternatively, a relocation may serve to ignite other interests for the children and may then give the father other avenues
of involvement.
In summary, I am of the view that the mother’s proposed relocation does not, or not significantly, affect negatively the children’s meaningful relationship with their father.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This sub-section is not relevant to the facts in this case.
Additional considerations
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
The family reporter enquired and reported as to the children’s views
in respect of the relocation.
The oldest child [X] is 14 years of age. The tenor of the family report suggests that he enjoys a good relationship with both his parents.
At paragraph 29 of the report Dr W says:
[X] reported that he enjoyed spending time with his father, especially because they get to do a lot of activities with him. He stated that he would even like to see his father more often.
At paragraph 27 of the report Dr W explored directly with [X] the proposed relocation. The report says:
[X] initially made it clear that he and the rest of the family wanted to go to [B], but then stated that he didn’t actually care either way. He stated on the one hand he had lots of friends here, but on the other hand, if he went to [B] they would have lots of land, they would be able to ride their motor bikes, and they would have motor bike tracks on their land. [X] stated that they had moved before and it wasn’t a problem, as “I make friends easy”.
Dr W also spoke with [Y] who is 12 years of age. At paragraph 35 [Y] is reported as follows:
[Y] also told the writer that he would be happy to move to [B], as it would be “good to have a change…to move around…to see new places and make new friends”.
At paragraph 37 [Y] is reported as follows:
[Y] also reported that he would like to see his father more if at all possible, stating “I like seeing him…and with the extra time we could do more stuff with him”.
The family reporter was not required for cross-examination. As such,
I am unable to determine the background of the interview and interview technique which led to both [X] and [Y] stating that they would be keen to have more time with their father. I accept, however, that this is their view.
[Z] is 10 years of age. The reporter dealt with [Z]’s views at paragraph 39 of her report. That paragraph says:
On the one hand [Z] reported that “it’s kind of okay” to move, but then stated “but then it’s also bad because we would move away from our friends and have a different school…it would be pretty sad”. [Z] stated that he is okay with making new friends, and that “I kind of want to go and kind of don’t … but I would like it better staying here with my friends”. When given three wishes, the only one [Z] came up with was “not to move”…
Like his older brothers [Z] expressed a positive response to seeing more of his father.
Taken at its highest, and given there was no cross-examination, the family report appears to show that each of the boys is essentially ambivalent in their views of the proposed move to [B]. Perhaps [Z] may be inclined to remain in his current circumstances. I do not however glean from the report that even [Z] is forceful in his views one way or the other.
The father’s affidavit material makes little or no reference to the stated views of his sons, although at paragraph 16 of his affidavit filed 1 April 2009 the father says:
That [Z] has voiced his disinterest at moving to [B].
There is no stronger statement from the father, for or against, as to the boys’ views conveyed to him.
Similarly, the mother’s two affidavits are silent as to the children’s views save and except at page one of her affidavit filed 11 July 2008 she says:
The decision to move to [B] came about during an impromptu family discussion…
Ms Russon was cross-examined in respect of the children’s views and wishes. The majority of that cross-examination was aimed at the allegation that she had attempted to influence the children’s views towards the relocation to [B]. However, during cross-examination the mother volunteered that the older two children were “not fussed” and that [Z] “probably didn’t want to go”. These comments appear to be in line with the observations of the family reporter and my general findings that the children are essentially ambivalent to the move and seem of sufficient maturity that they can rationalise that they would maintain a relationship with their father in any event.
As I have said, there was a deal of cross-examination as to the mother’s alleged attempts to manipulate or influence the children’s views.
Quite frankly, if this is the case, then she has not been overly successfully given what I have found to be their ambivalence. Nevertheless, I do not believe that the mother should properly
be criticised for attempting to elicit the views of the children, given their ages. Indeed, I again refer to the paragraph in her affidavit where she refers to the decision to move to [B] coming about as a result of an “impromptu family discussion”.
It was alleged that Ms Russon, knowing the father’s lack of consent
to the move, may have taken the children to visit schools and other facilities in the [B] area. It is clear that there have been discussions within the family as to the advantages of a move to [B] such as catering for the children’s interests in [omitted].
In any event, the mother has been the primary carer of the children. They have lived for the greater majority of their nine years since the parents’ separation in the mother’s household. She has remarried. The children are not infants. Indeed, they are of an age they could normally be expected to demand and contribute an input into family decisions. For the mother to exclude children of this age and in those circumstances from discussions as to an anticipated family move might also be subject to criticism. There is a significant difference between manipulating or inducing the children’s views and simply giving them the information on which to express those views. It is true that the mother took the children to [B]. She apparently showed them possible schools and the area generally. In my view the mother should not be criticised for doing so. I remain of this view even though the mother apparently took the children after becoming aware that the father opposed the proposed relocation. Again, the children are of an age where they should undoubtedly be canvassed as to their opinions. There is no evidence of inducement. To the contrary, the evidence is clear that the mother did no more than provide the children with information so as to make an educated statement of their own views. This is evidenced by the stated views of the children themselves to the family reporter. At paragraph 27 of her report Dr W notes [X] as saying:
He stated that he had discussed this with his mother and her partner a few times, which is how he knew about this different option.
And at paragraph 35 of the same report Dr W notes in respect of [Y]:
[Y] also told the writer that he would be happy to move to [B], as it would be “good to have a change… to move around… to see new places and make new friends”. [Y] reported that he had discussed all of this with his mother and that she thought that their proposed relocation to [B] would be good for them (the boys), although he stated his father didn’t think it was a good idea because he wouldn’t be able to see them as much.
Taken literally, it would seem that Mr Duane might also have spoken
to [Y] regarding his (Mr Duane’) views of the proposed relocation.
Overall, I believe the views of the boys, so far as they go, are considered and made without inducement or manipulation.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the parents or any other persons
The parties in this matter separated as long ago as May 2000.
The children appear to have endured and survived the inevitable difficulties of separation and have established and maintained good relationships with both parents.
The established regime is that the mother has been the long term primary parent for the children. The children are essentially with the mother during school weeks. There would therefore be an established routine in her household.
The children’s relationship with their father has occurred mainly
on weekends and for occasions during school holidays. It is inevitable that the nature of the relationship between the children and each
of their parents would be different on account of the distribution of time and what occurs during that time with each of the parents and the roles that each party has assumed over the years.
The family reporter observes that:
All three boys appear to have formed a positive bond with both their mother and their father, interacting with them both comfortably and confidently, and being happy to see each of them.
Undoubtedly, a relocation, even one of such short a distance as that proposed by the mother in this case, will result in some change in the nature of the relationship of the children with their parents, and more particularly, the non-resident parent. The children would develop relationships with their peers in the new location. The children would engage in extra-curricular activities which occupy their non-school time. These changes would impact on, and perhaps conflict with, the boys’ relationship with their father. This, however, is an inevitability
of children growing older but is perhaps emphasised where and when there is a geographical distance between the parents.
Nevertheless, the nature of the relationship between the children
and the father described by the reporter as being one with
a “positive bond” may be of such strength so as to survive any relocation and the changes in the nature of the relationship which ensue. That is, the Court may be on occasions less inclined to look positively at a proposed relocation if the relationship between the children and the non-relocating parent is a developing or weak one.
In this particular matter I take the view that it is proper to consider
a number of factors in respect of the nature of the children’s relationship with their father. They include the children’s ages.
They are not infants. In many ways the relationship of the children with the father has had many years to develop. Obviously, it is
a continuing and developing concept, but the father himself argues that the relationships between he and his sons are strong and bonded. These children are 14, 12 and 10 years of age. If they were infants then the requirements and considerations may well be different.
In this case the parties have been separated now for some nine years. The children have grown knowing their father to have lived other than in their own primary place of residence. It is not a situation where the separation has occurred recently and the children’s familiarity is their father sharing their residence on a daily basis.
The children’s time with their father has been limited in the main to weekends and some of the school holidays. In the family report Dr W notes at paragraph 50:
Similarly, Mr Duane has expressed a desire to help the boys with their homework during the week in order to improve their grades at school, at [sic] to involve himself with other sporting activities with the children, such as [omitted]. Not only will these mid-week activities be impossible in the event of a relocation, but the quality of Mr Duane’s relationship with the children is likely to deteriorate as they become more and more involved in their new lifestyle, and there are less opportunities for Mr Duane to interact with them and involve himself in all facets of their lives.
These are admirable objectives of the father. Indeed, he has already taken on the further involvement in the children’s midweek [sport] training. However, the mother’s very competent cross-examination
of the father was enlightening. This is particularly so given the mother’s contention that the father’s involvement in the children’s [sport] has been a relatively recent innovation with the suggestion that it coincides with these proceedings and her application for relocation.
It was put to the father in cross-examination that some nine years ago and soon after separation, the mother proposed that he also spend each Wednesday with the children and he chose not to take up that invitation. The father readily agreed. The mother then put to the father that the counsellor had noted that the children would like to have an evening meal with the father each Thursday. She asked him why he had taken almost to the date of the trial to take up the offer.
He was unable to give a response.
The mother asked the father why he habitually only had the children for a maximum of two weeks of their school holidays each year and more recently had enjoyed only a week in January with the children whilst declining his option of a week in the mid year. He was unable, in my view, to give an adequate response.
The mother put to the father that he paid total child support for the three children of $280.00 per month. She then asked him whether
he assisted in any other financial way. He said that he did not but then suggested that he may have purchased some items of sporting equipment.
The mother asked the father how often he had taken the children away on holidays during the nine years since separation. He agreed that
he had never done so.
The father was asked as to what activities he enjoyed with the children the weekend previous to the trial. Despite the proximity of time,
the father seemed unable to answer the question until prompted by the mother that the children had accompanied the father shopping for curtains.
The father was asked as to whether he could name the children’s teachers. He could not do so. The mother cross-examined him as to the last time he had had any contact with the children’s school.
He mentioned one contact about a year previous. She then cross-examined him as to an incident where [X] had been in some trouble at school and whether the father had contacted the school and had made any input. He agreed that he had not done so.
The father was asked as to how many times in nine years he would have collected the children from school. His answer was “once
or twice”.
I found the mother’s cross-examination of the father to be illuminating and of real assistance. It is abundantly clear that the mother has very much been the primary carer of the children. Further, the evidence suggests that she has also assumed the majority of parenting responsibilities for the children. In addition, there is evidence
to suggest that the mother has actively encouraged the father to spend more time with the children. The father has had some nine years
to take on a greater role in the children’s lives and to spend more time with them in the sense that is contemplated by “substantial
and significant time” as defined in the Act. It is equally clear that
he has not taken the opportunity to do so. There is no evidence
to suggest that the mother has in any way thwarted him doing so. Whilst I have no doubt the children very much enjoy their father’s involvement in [sport] training mid-week and would like to enjoy evening meals with him, the evidence as a whole leads me to conclude that the father’s recent change in attitude and involvement has an element of opportunism, in that he does not explain his reluctance
to enjoy or seek extra time with the children over the previous nine years.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
The father, through his counsel, expressed some concerns in relation
to the mother’s willingness to facilitate and encourage his relationship with the children. In some senses the father’s concerns are echoed
in the family report. At paragraph 42 of her report Dr W says:
It was noticeable throughout the day that Ms Russon was resentful about having to justify why she wanted to relocate when her perception was that it would be good for the children, and especially since she feels that Mr Duane has very little to do with the children on a day-to-day basis, except on the two days a fortnight he has them, leaving all the financial and travelling burdens to her…
After having the benefit of the father’s cross-examination by the mother I find that the mother has encouraged the children’s time with the father over the years. He agreed that the mother had offered and encouraged him to have more time with the children. For his own reasons the father has not taken up those offers.
The mother says that she will share the travelling for the children to be with their father should she be permitted to relocate. I find that she would do so.
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
There is no doubt that a change in the children’s primary residence from [U] to [B] will have some effect on them. There will be a change in school. They will be removed from their current peer group relationships. There will be some further distance put between them and their father’s residence. There will be a travel element for the purposes of them seeing their father.
The mother maintains that the current relationship between the children and their father could be maintained even with a move to [B].
She proposes that the children still spend each second weekend with their father and that the holiday regime remain. Effectively, therefore, the only change for the children from the current orders would be the increased travel component. This is not insignificant. The estimates
I have been given suggest that this could involve two hours of travel for the children in each direction. The mother, however, invites me to find that this could be of some benefit to the children in that it could give them time with their father in the car for conversation and generally being together.
Of course, there would be another change in the nature of the boys’ relationship with their father. At the moment he attends with them informally for [sport] training during the week. I accept, however,
the mother’s evidence that this is a relatively recent innovation by the father. The evidence does not suggest that the father holds any formal coaching appointment. Rather he attends and assists as an interested parent. In any event, overall and given the ages of the boys, I do not find that the absence of the father from mid-week [sport] training for some 14 weeks of the year would amount to a significant effect on the boys or their relationship with their father.
The change in residential location might eventually have other effects for the boys. If they are keen to pursue extra-curricular and sporting activities then these might occupy their weekends. However, in my view the distance between the father’s residence and [B] is not such so as to exclude the father’s attendance and participation in those activities. The simple fact is that change in the priorities and activities of the boys is inevitable. This is the case whether they live in [B] or in [U]. It is the role of the parents to participate and have an involvement in the range of activities so far as they can. This might involve some inconvenience by way of travel. This might be a lesser preference of the father. However the vicissitudes of life and parenthood often demand such compromises.
I see the real issue for the father is his ability and commitment to have an involvement in the children’s lives in the wider sense and as they develop a broad range of interests and relationships.
Section 60CC(3)(e) – the practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis
The practical effect is one of travel time, distance and cost. The evidence is that the father intends to move to [M]. If the mother stayed at [U] then this would involve some 25 minutes of travel. This would obligate the boys to have two hours’ travel each way or a total of four hours each fortnight. They would do so in the company of their mother for half the journey and their father for the other half. The parents would have the same travel commitment fortnightly. This would be on the basis of the mother’s proposal that the parties effect changeover at [E] which is roughly equidistant from [B] and [M]. In my mind this is not an onerous travel commitment when balanced against all other considerations.
Section 60CC(3)(f) – the capacity of each of the children’s parents, and any other person, to provide for the needs of the children, including emotional and intellectual needs
The mother in this case is the unchallenged primary parent. She has held this role and discharged those responsibilities for the last nine years. She does so without any real criticism as to her capacity.
In fact, any implied criticism is directed to the father for not being more involved in the children’s education and for not accepting the mother’s invitation to spend more time with them.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
I am of the view that the maturity of the children is relevant. They are not young children. As mentioned above, the family report notes
a good and bonded relationship for the children with their father.
As such, and with the benefit of that relationship, I am of the view that they should be able to adequately deal with the changes, even subtle changes, that would come with a relocation from the suburbs
of Melbourne to [B]. The contents of the family report suggests that the boys have themselves considered the points for and against such a move. I repeat my findings that they clearly express their views independently of either of their parents’ influences and biases.
Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Both parties, in their own ways, appear to have been responsible and competent parents over the past nine years. The fact is that the father has delegated many of the routine and mundane roles to the mother. His time has been limited to weekends and holidays. His further involvement has been recent and minimal. An example is his almost non-involvement in the children’s education.
The family reporter was critical of the mother. Dr W observed the mother at paragraphs 12 and 13 of her report as follows:
Ms Russon presented as being single minded and quite intent on getting her perspective across, and seemingly uninterested and/or reluctant to see the same issues from a different perspective… She was very focused on “the family”, meaning her family, and what was good for them, but she did not appear to consider that
Mr Duane was in fact part of the boys’ family…
I gained the impression that she was so focused on hers and her husband’s wants and needs that she was unable or unwilling to see how the boys’ relocation to [B] might effect [sic] their current and long-term relationship with their father.
And later in the report Dr W opines at paragraph 42:
It was noticeable throughout the day that Ms Russon was resentful about having to justify why she wanted to relocate when her perception was that it would be good for the children…
The Court had the advantage of observing the demeanour and listening to Ms Russon when she was in the witness box and under cross-examination from the father’s counsel. She again then demonstrated her traits of single-mindedness and forthrightness. She made some statements that could be considered disturbing and reflect poorly on her attitude to and understanding of the roles of a parent particularly when separated from the other parent. Ms Russon was asked about an apparent continuing poor communicative relationship between her and the children’s father. She conceded that there had been a breakdown in communication. Despite there being nine years since the separation, Ms Russon said that she left most of the communication with
Mr Duane to her current husband. In response to a question as to whether she would prefer not to communicate with Mr Duane,
Ms Russon gave an enlightening answer. She agreed that this would
be the preferable case and said:
There should be no need to communicate with him. We have a Court order. If there is a problem then it would be up to the children.
This was a disappointing aspect of Ms Russon’s evidence. The fact
is that parents do need to communicate. They should be able
to differentiate their own residual difficulties from the needs of their children. It is not usually advisable or in the interests of the children for parents to delegate that responsibility. To put it another way, children will obviously benefit from seeing and knowing that their parents are able to discuss important issues about them.
The concern for the Court is that the effect of Ms Russon’s attitude could be accentuated and entrenched if there is some distance put between the children and their father by reason of her relocation. One could reasonably expect a relocation to be the cause of more need for communication.
Nevertheless, and having had the advantage of observing the demeanour of both parents generally, I tend to believe that
Ms Russon’s unfortunate responses in the witness box are more a demonstration of her personality generally than an attitude problem in respect to the children’s father specifically. She is undoubtedly a woman of forthright and strong views. She is not afraid to express her views. However, I do not see this personality trait as being incompatible with her having her sons’ best interests at heart. She has assumed by far the majority of the responsibilities for the care of these children. Her invitations to the father for his greater involvement have been rejected. Having said this, I emphasise that the children would obviously benefit by their parents having a more open and better communicative relationship in the future. The children should not be conduits for communications between their parents.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The mother was criticised during cross-examination for not having
a certainty of her proposals and plans in respect of the intended relocation to [B]. She has not enrolled the children in school. There is no affidavit from an estate agent as to the availability of
a home. There is no evidence that she has purchased a home. There
is no affidavit from her husband as to employment or self employment possibilities in the [B] area. There is no real evidence as to the financial advantages to be gained by the family if they were to relocate to [B]. There is no evidence as to the availability and advantages of the schools for the children.
In summary the mother’s proposal for relocating to [B] appears
to be based on the following:
a)
Better financial opportunities for Ms Russon and her husband
in their business. Her unchallenged evidence was that she and
Mr R had been “asked to tender for a contract in [B]”.
b)
A different lifestyle in the “country” environment of [B]
in that it would cater to the outdoor interests of the children.
To the family reporter the mother said this at paragraph 10:
Ms Russon reported that the family is wanting to move to the outskirts of [B], some 10 to 15 minutes from the city centre, and their plan was to purchase a large property, around 15-20 acres, with a large home, or a smaller home with a bungalow, so that the children can enjoy the country life and their interest in motor bike riding. Ultimately they would like to give each of the children their own bedroom.
And also later in the report at paragraph 16 the mother is reported
as saying:
Ms Russon is suggesting that a relocation to [B] for the boys will be positive for them in many ways, specifically, they will get to enjoy a healthy more relaxing country life style but still enjoy the benefits of a small city, they will be able to participate in more activities because the financial strain on the family will be reduced, they will get to spend a lot of time outdoors doing the things they love such as motor bike riding, they will be able to attend either mid week or weekend sporting activities, depending upon their preferences, and they will have an opportunity to attend one of the excellent private schools in [B] at half the cost of a Melbourne private school, or alternatively the public school near where they were planning to live, which has an army cadet program in which [X] expressed some interest.
In the next paragraph of the family report Ms Russon is reported
as saying:
Ms Russon believes that a move away from [U] School will be especially positive for [X] since she is wanting to get him away from the children he currently associates with, who she believes are a negative influence upon him. Ms Russon stated that she is also very disheartened with the school in general, since she has indicated that they are not very helpful with communicating about missed work or [X]’s tendency to fall behind. She stated that [X] is not doing at all well at school, and she maintains that she school does not seem to care. She feels that a change o school, to a more caring and structured environment, whereby the teachers and coordinators are more interested in their students, would be more beneficial for [X], and also [Y] since he is due to start at the same school this year.
The same report at paragraph 19 shows Ms Russon stating:
Furthermore, Ms Russon has indicated that she and her husband are struggling financially at the moment, and this move would not only given them a lot more disposable income, but it would also allow them to take advantage of a business opportunity that will give them even more income, and thus benefit the whole family. Ms Russon stated that if they don’t make this move then their financial burdens may force them to move homes and schools anyway, and she maintains that a move to the [B] area would simply help to take the pressure of [sic] them.
It is true that the mother has not enrolled the children in a particular school at [B]. It is true that she has not yet bought a home at [B]. It is equally true that there is no detailed evidence as to the employment opportunities for she and her husband. However, the mother filed her initiating application as long ago as 13 June 2008. In that document she sought an order allowing the children’s “place of residence to be amended to [B] and surrounding areas”. The mother has been consistent in her quest to relocate her family to [B]. The matter came before me for hearing some 10 months after the application was filed. I conclude, therefore, that this is not a whimsical application or one made without thought as to its advantages and disadvantages.
The mother has however made the preliminary enquiries in respect of matters such as the children’s schooling. She has taken the children to their prospective schools and been criticised by the father for doing so.
In any event, the mother articulates a number of anticipated advantages for her family and the children. To my mind her rationale is very much child-focused. I do not find any criticism of the mother for failure
to have presumed Court orders in her favour and thereby, for example, purchased a residence in [B] to be justified.
It is well established that the parent intending to relocate does not need to demonstrate “compelling” reasons for doing so.[11] As his Honour Kirby J said in AMS v AIF (supra) at [192]:
If “compelling reasons” were the criterion for relocation, few indeed would be the custodial parents who could meet that standard. The result would be a very serious inhibition upon the freedoms of custodial parents, mostly women, without any commensurate or equivalent inhibition upon the freedoms of movement of non-custodial parents.
[11] AMS v AIF (supra) per Kirby J at [191]-[192].
Nor is there an onus on the mother in this particular case to establish reasons, compelling or otherwise, for the move to [B]. The Full Court in the leading decision of A v A: Relocation approach (supra) said at [87,551]:
In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus of establishing that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
Conclusions
The mother is and has been the primary parent. She intends
to continue in that role. The father does not seek orders to the contrary.
I must make orders which fundamentally are in the children’s best interests. Such a result is achieved after considering and balancing
a number of factors set out in the legislation and as against the factual background and the proposals of the parties.
I must consider whether the children’s current good relationship with their father can be maintained if there is to be a change in their residence. I find that it can be maintained or even flourish if he continues his recent commitment to spending more time with them. The nature of the relationship might alter. Perhaps ironically, the current strength of that relationship supports a possible relocation.
The nature of such relationships is that they are a dynamic concept. Both the parents should be able to participate in and enjoy the evolving of their children moving through various phases of their lives.
The orders sought by the mother do not, in my view, preclude the father from such involvement.
There will be change. However this is inevitable whether there
is a move or not. The fact of change itself should not therefore work against a relocation. Rather, it is the effect of such change that
is relevant. In this particular matter the effect will not be great.
There is no question of a change of residence for the children.
They will remain in the primary care of the mother. The time spent by them with their father will not be significantly reduced, if at all.
There are opportunities for the children and the father to explore other options such as more school holiday time.
I have found that the mother has historically encouraged the children’s relationship with their father. I believe that she will continue to do so. She has living with her three boys of mature and independent thought. They will have a large say in the nature and terms of their relationships with both their parents.
I am of the opinion that the mother as primary carer should in my view be given some consideration as to her freedom of movement so far
as it does not conflict with the children’s best interests. There is clearly no presumption in favour of her relocating simply because the father does not seek an order that the children live with him. The authorities have long recognised this fundamental and constitutional right of freedom of movement.[12] In the twenty-first century families do routinely move between residences, cities and countries. This happens whether the parents are separated or not. It is a dynamic community with the advantages of advanced communication and travel facilities.
[12] A v A: Relocation approach (supra) at [87,551].
To my mind, the mother has made a considered, objective and altruistic decision to move the relatively short distance to [B] from suburban Melbourne. She has acted appropriately in bringing an application although arguably she could have complied with the existing Court orders from [B].
The children appear to have no strong preference for or against the move. This demonstrates both their maturity and independence
of thought. Given those traits, and their own statements to the family reporter, I have no doubts that they would adjust easily to a move
to [B]. Obviously there would be some disruption and adjustment. The evidence suggests that they will cope.
The practical aspects of a relocation namely the travel may irk the father. However, they are not so onerous to, on balance, deny
the relocation.
There is residual animosity between the parents. This is both unfortunate and undesirable. Perhaps a greater level of communication and trust between these parents some nine years after separation may have avoided this litigation. That deficiency in their relationship however could be compounded if the mother is required against her wishes to live in a location other than that of her choice. That is of course only one factor to consider in the balancing process. It can however be one that impacts directly on the children. That is, a happy home environment would ordinarily be in the children’s best interests and any resentment by the mother because of an order forcing her to live in a location other than her choice might not lend itself to such a happy home environment and therefore be contrary to the children’s best interests. Such resentment might understandably be emphasised where that parent is not challenged as the primary parent.
Having taken all of these matters into account I am of the view that the children’s best interests are to be served by permitting the mother
to relocate their residence to [B].
I propose to make orders that continue the current formal regime of the children spending time with their father. In the hope of improved communications between the parties, there will be an order that there be such further time between the children and the father as agreed between the parties. The orders will allow options for the father
to spend increased time with the children during school holidays.
The children have each expressed to the family reporter a desire
to spend more time with their father and the Court would be hopeful that the father would avail himself of opportunities to spend time with the children during school holidays.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 12 June 2009
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