Ryan and Ryan
[2008] FMCAfam 92
•23 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RYAN & RYAN | [2008] FMCAfam 92 |
| FAMILY LAW – Children – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112. Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 M & S, [2006] FamCA 1408, (2006) 37 Fam LR 32, (2006) FLC 93-313 Mazorski & Albright, [2007] FamCA 520, (2007) 37 Fam LR 518 |
| Applicant: | MR RYAN |
| Respondent: | MS RYAN |
| File number: | PAC5202 of 2007 |
| Judgment of: | Halligan FM |
| Hearing dates: | 21 & 22 January 2008 |
| Date of last submission: | 22 January 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 23 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Shaddick Baker and Paull |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | White and Associates |
ORDERS
The mother is restrained from changing the place of residence of the children A born in August 1999, D born in March 2001 and G born in March 2003, more than 70 kilometres from the father's current place of residence without the father's prior written consent.
The parents shall have equal shared parental responsibility for the children.
The parenting orders in relation to the children made by this court on 27 October 2005 are varied as follows:
(a)The father's alternate weekend time with the children under paragraph 4(a) of the prior orders shall end before school on Monday, provided the children attend a school located no further from the father's current place of residence than their current school, and otherwise shall end at 6.00 pm Sunday;
(b)The father's time with the children falling in the first half of Christmas school holidays shall end at 6.00 pm on the middle day of the holidays.
IT IS NOTED that publication of this judgment under the pseudonym Ryan & Ryan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5202 of 2007
| MR RYAN |
Applicant
And
| MS RYAN |
Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore)
Introduction
These are parenting proceedings under the Family Law Act 1975. The principal issue for determination is whether the interests of the parties’ three children are better served by living with the mother in the Sydney area, where they presently live, or in country or regional Victoria.
Background
The father is aged 28, the mother 30. They commenced cohabitation in late 1998 according to the father, or May 1999 according to the mother. Nothing turns on this difference. They married on 10 January 2000 and separated in February 2002.
The parties’ three children are A, born in August 1999, aged 8, D born in March 2001 aged 6, and G born in March 2003, aged 4. An issue about G’s paternity raised by the father after her birth was resolved in earlier proceedings.
The father has re-partnered. He commenced to cohabit with his new partner K in February 2003, and they married in December 2003. They have three children, S born in June 2003, aged 4, Z born in July 2005 aged 2, and L born in November 2007, aged 8 weeks.
Consent parenting orders were made on 27 October 2005 in this Court, providing for the children to live with the mother and spend time with the father on alternate weekends and for half the school holidays. The father has spent time with the two eldest children since separation, and since 2005 with all three children, on this basis.
On 8 October 2007, interim orders were made in these proceedings restraining the mother from changing the children's place of residence outside a 50 kilometre radius of the father's home.
The evidence
A has been diagnosed by a paediatrician as suffering Oppositional Defiance Disorder (ODD), and D has been diagnosed by the same paediatrician as suffering from ADHD. The father and his wife do not unreservedly accept these diagnoses. There is no evidence that the father has sought to test the diagnoses by seeking a second opinion.
Both boys display disruptive behaviour, and A displays violent behaviour, at school, and both have had a number of suspensions at school. D is medicated for his condition. A’s behaviour is managed by behaviour management techniques. The mother has kept the father advised of medical appointments, diagnoses and treatment regimens, and the father and his wife have adhered to the boys’ medication and behaviour management regimens when in their care, despite their scepticism about the diagnoses.
Since separation, the mother has moved several times. After separation she and the boys moved to rented premises at Cxxx. In October 2002 she moved to larger rented premises at Kxxx. In November 2006 the mother and the three children moved to rented premises at Wxxx. By this time the mother was in a de facto relationship. In March 2007, she, the children and her de facto partner moved to premises purchased by her de facto partner’s mother at Exxx. Despite the two and a half hour travel time between Exxx and the father's home, the parties, to their credit, negotiated changeover arrangements so that the contact regime under the 2005 orders continued.
When the mother's relationship with her partner broke down in August 2007, she and the children moved back to the western Sydney area, first living with friends at Lxxx. After the order restraining the mother's move to Victoria, she took a three month lease of premises at Mxxx.
These moves have involved changes of school for the two boys. Both started at Cxxx Public School. The mother moved them for the commencement of Term 2, 2006, to Kxxx Public School because of dissatisfaction with the staff at the former school over management of A’s behaviour. The children moved to Exxx public school in March 2007, and back to Kxxx in August 2007.
The mother's mother and step-father, to whom I will refer as the maternal grandmother and maternal grandfather respectively, and collectively as the maternal grandparents, lived at Cxxx, where the maternal grandfather worked in the agricultural industry, until September 2007. The mother worked at the same agricultural industry location for much of the time since separation until she moved to Exxx. She was assisted in child care when working by the maternal grandmother, and used the services of a child care centre opposite the workplace.
After her return from Exxx, the mother had difficulty obtaining rental accommodation at a price she could afford. She was rejected for 27 rental properties for which she applied, despite a good tenancy record. She then was relying on social security benefits. The former agricultural job was not available, as the maternal grandparents had decided to move to Sxxx, Victoria and the maternal grandfather had ceased work, or would shortly cease work.
About a week before 14 September 2007, the mother decided she wanted to move with the children to Nxxx, a town about 15 minutes from Txxx, and about three and a half hours’ drive from Sxxx. She twice in the week before
14 September 2007tried to arrange with the father to talk about her accommodation problems, but the father did not make time available to do so. The mother at no time mentioned her wish to move interstate to the father when asking him to talk to her about her accommodation problems.
When the father and his wife were collecting the children for the weekend on Friday 14 September 2007, the maternal grandfather spoke to the father and told him that he and his wife were moving to Victoria the following week, that the mother was having significant difficulty finding affordable rental accommodation, and that the mother wished to move to Victoria too, where it was suggested affordable rental accommodation was available. The father agreed to the move on condition that it be for a 12 month trial and the children's behaviour improved.
The following day, having had time to reflect further, the father changed his mind. He did not tell the mother of his change of mind that day. He said he advised her when he returned the children to her on Sunday 16 September 2007, while the mother denied being told of his change of mind until served with the father's application to prevent her relocation. She admitted that they discussed matters relating to the move on 16 September 2007, and that she understood the father was considering changing his mind. On the mother's behalf, it was conceded this was a significant decision to make, and that the father was entitled to change his mind and no criticism was made of him for doing so.
The mother had, on 15 September 2007, committed to a lease of premises in Nxxx and booked a removalist.
The father commenced proceedings to prevent the mother's move on
18 September 2007, and as mentioned, an interim order was made on
8 October 2007, preventing the mother moving the children. As a result of this order, the mother forfeited 4 weeks’ rent paid in advance on the premises in Nxxx in the sum of $640. She was able to cancel the removalist without charge.
The mother's proposals
The mother now proposes moving with the children to Sxxx (which is approximately 950kms from Sydney), where the maternal grandparents have moved. She will thus again have their support, and proposes to job share with her mother at the business her step-father manages, the maternal grandmother working the morning shift and the mother the afternoon shift. She proposes to initially move in with her mother and step-father, until she finds her own rental accommodation.
The mother said she made the decision that she preferred to move to Sxxx rather than Nxxx around Christmas time. The mother said there are three schools in Sxxx, but because of the school holidays, she has not been able to make any enquiries of these schools about vacancies, or about the support they may be able to provide for the two boys with their special needs. She assumed similar services will be available as there are at Kxxx school, even though it seems the same support services were not available at Cxxx and Kxxx schools. The mother's assumption therefore seems unjustified.
The mother said her step-father intends retiring in about two years, and then intends moving to Txxx. She intends to move to Nxxx at that time. As mentioned, Nxxx is about 15 minutes from Txxx. The mother believes there will still be affordable accommodation available there, and believes there will be job opportunities for her in Txxx.
Thus, the mother's proposal is not for a significant move of residence, but for two significant moves of residence within about two years.
The mother proposes that the children spend all but the last day of each of the shorter school holidays and four weeks of the Christmas school holidays with the father.
The mother said in her evidence in chief that her enquiries indicate children can fly unaccompanied and supervised by a flight attendant from five years of age, and by the first school holidays in 2008, G will be five. She proposed that the children fly between Ixxx and Sydney (Ixxx is approximately 220kms from Sxxx), while referring to the possibility of driving the children. She proposed the parents equally share the cost of the children's travel, be it by air or land.
In cross-examination, the mother appeared vague and uncertain about the air travel arrangements. She said that for the first few flights she would accompany the children, then said she would do so unless she was working, then said she proposed to accompany the children until the children are comfortable travelling by themselves, then immediately added that therefore she would do it all the time. She said she would meet the cost of accompanying the children. She said in cross-examination that there are some direct flights between Ixxx and Sydney and that the cost of fares varied. Otherwise she provided no detail about the air travel option.
There is no evidence of the mother's anticipated financial circumstances if she moved to Sxxx. Hence, it is not apparent whether the mother could afford the costs of half the children's air travel and of her air travel with them. Nor was there any indication whether the mother would remain in Sydney until the children's block time with the father ended, and if so whether she would have accommodation costs to meet. If she did not remain in Sydney, she would need to meet the cost of two return flights between Ixxx and Sydney for each school holidays, unless she drove.
If prevented from relocating with the children, the mother said she would remain with them in the Sydney area. While she proposed an order restricting her residence to a 70 kilometre radius of the father's present home, she indicated a preference to keep the children in their current school. Whether she could do so would depend on where she could find accommodation. She proposed that the father's weekend time with the children increase to end on Monday before school.
The father's proposals
The father proposed that the children live with the mother within a specified distance from his present home, and accepted the 70 kilometre distance the mother proposed in the alternative to a move to Victoria. He proposed that the present orders otherwise continue, except for a slight change to the wording of the Christmas school holiday order to effect a more equal sharing of that time.
In the alternative, if the mother and children are to move to Victoria, he proposed spending time with the children much as the mother proposed.
Additional options to be considered
The parties agree there should be an equal shared parental responsibility order. Thus, the court must consider the options of an equal time arrangement or, if not, a substantial and significant time arrangement (s.65DAA).
If the children are to live in Victoria, it is clear neither option is reasonably practical (S.65DAA(1)(b), (2)(d) and (5)) bearing in mind the geographic separation of the parents’ homes that would then exist.
Thus, in addition to the parties’ proposals, the court must also consider the options of an equal time arrangement, both parents living in the Sydney area, and a substantial and significant time arrangement, both parents living in the Sydney area.
The expert’s report
The expert who prepared the Family Report interviewed the parents, the father's wife, and the parties’ children, and observed the children with the mother, and with the father, his wife and their three children. He is of the opinion that the children have a strong attachment to both parents, and appeared to have normal relationships with their step-mother and half siblings.
A was “clearly unable” to express a firm view about the controversy between his parents, describing it, with a wisdom belying his age, as “the judge’s dilemma”. He loved both parents, wishing they would reconcile while recognising this would not happen. In referring to the fun he had with his parents, he appeared to the expert who prepared the Family Report as being careful not to differentiate between his parents, and said he also enjoyed being with his step-mother. He said he loved his grandparents, adding that he loved his maternal grandmother “a bit more”.
A told the expert he liked his school and had many friends there, but not many where he lived. He liked his half siblings, especially the new baby.
When further questioned about it, ultimately A told the expert he wanted to go to Victoria, his stated reason being because he had not been there before. When asked how he would feel about not seeing his father and half siblings as often as now, he said it would be “OK” as he would see them in the holidays.
Despite his diagnosis of ODD, A impressed the expert as “compliant”. Despite this, the expert was of the opinion that his answers to questions were reflective of a spontaneous view.
D and G were seen together and showed no awareness of the current situation.
The expert said in the Family Report that each of the parents acknowledged the other as a positive parent, and there was no suggestion of any substantive problem areas affecting individual parent/child relationships. He opined in paragraph 40 of the Family Report-
“There were some differences of opinion regarding A’s ODD but these appeared to have stemmed from poor communication between the parents and a lack of consultation between the father and the child’s doctor. There seemed to be little evidence directly connecting A’s condition or D’s ADHD with the current dispute between the parents.”
The father's expressed concerns about the mother's proposed move to Victoria – the children would have to change school again, they would lose their current friends, they would have to attend new doctors, they would miss regular church that they attend when spending time with the father, and he would not see the children as he did now – were all valid concerns in the expert’s opinion.
The expert said in the Family Report that if not permitted to move to Victoria with the children, the mother would feel deeply disappointed, but whether this disappointment would directly impact on her parenting capacity was not possible to predict.
In the expert’s opinion, the perceptions and wishes of the children were not a significant factor, the two youngest children displaying no conception of the current issues, and A’s ultimate opinion that he would like to go to Victoria being considered to be neither a firm nor a mature wish. I accept this evidence.
Ultimately, the expert expressed the view in the Family Report that the matter fell to be determined on issues other than the children's views and the parenting capacities of the parties.
In oral evidence, the expert was asked whether he could express any opinions on the matter covered by s.60CC(3)(d), the effect of any change in the children's circumstances, including any separation from the father or other significant person. He expressed the opinion that D would probably adjust, depending on how secure he felt in his new circumstances, and provided he did not feel isolated and felt happy. He said if A spent time with his father as the mother proposed, he would probably adjust. As for D and G, he opined that while he could be less sure, his “hunch” was that they would follow A’s lead. He said he otherwise could not express an opinion as to the effect on the children's relationships other than to say they should have as much contact with the father as possible.
In cross-examination, the expert said that he was advised generally that A had been suspended from school, but not specifically of his three day suspension in September 2007. The mother reported to the expert that the boy had settled at school and his behavioural problems were no longer apparent. The expert was of the opinion that the effect of a further change of school on A was a relevant issue to consider, although he did not agree that the change of school from Exxx to Kxxx shortly before the September suspension was necessarily the cause of the behaviour giving rise to the suspension, referring to the fact the mother and children had just left a man with whom they had been living for three years as another possible cause. The effect of this evidence in my view is to support an inference that there may be some connection between a deterioration in A’s behaviour and significant change in his life, be it a change of school, the loss of a significant relationship, the loss of friends, or a combination of such factors.
In relation to G, the expert said she needs to know her father is involved in her life, and that for children of her age physical contact is “far preferable” to phone contact.
Nonetheless, the expert made it clear that he was not prepared to express an opinion that a move to Victoria would be detrimental to the children.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
S.60B sets out the objects and principles of Part VII in the following terms:
“60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the children's best interests. It is as follows:
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations 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.
(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.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the amendments effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006, as follows:
“Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
The parties agree there should be an equal shared parental responsibility order made. In those circumstances, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)). I specifically drew counsel’s attention to the requirements of s.65DAA. As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340.
In relation to what are often called relocation cases, such as the present one, Desau J, in M & S, [2006] FamCA 1408, (2006) 37 Fam LR 32, (2006) FLC 93-313, a case decided within six months after the commencement of the Shared Parental Responsibility amendments, and shortly after the Full Court delivered its decision in Goode & Goode (above), summarised the pre-Shared Parental Responsibility law as follows:
“21. … In an effort to distil the complexity of the law, the Full Court had set out the applicable principles and the approach for a trial Judge in A and A (Relocation Approach) (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852). It provided three steps for the judge (at para 82):
‘1. Identify the relevant competing proposals;
2. For each relevant s. 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.’
22. Expanding on the second step, the Full Court in A and A added:
· As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
23. The Full Court emphasised that none of the parties bore an onus to establish that the relocation would promote the best interests of the child, and the applicant could not be required to demonstrate ‘compelling reasons’ for the relocation. Significant weight had to be attached to the parent’s right to freedom of movement, but subject to the child’s best interests, which remained the paramount though not the sole consideration. And, in deciding best interests, the court had to consider the arrangements each parent proposed for the child to maintain contact with the other and if necessary, devise a regime which would adequately fulfil the child's right to regular contact with a parent no longer living permanently in close physical proximity.
24. In Bolitho and Cohen (2005) FLC 93-224, the Full Court noted that the High Court in U and U (2002) FLC 93-112 had reaffirmed that the ‘overarching issue’ in relocation, was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U ‘… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.’ The Full Court (at para 72) referred to the High Court having said:
‘…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) 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.’
25. The Full Court also observed in Bolitho and Cohen that a trial Judge was entitled to look beyond the proposals of the parties in making a particular order.”
In relation to the changes effected by the Shared Parental Responsibility amendments, her Honour said:
“28. Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):
‘… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…’
…
38. Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39. The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply ‘except when it is or would be contrary to a child’s best interests’, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.”
Brown J, referring to the effect of the Shared Parental Responsibility amendments in relocation cases, said in Mazorski & Albright, [2007] FamCA 520, (2007) 37 Fam LR 518:
“15. Before me no counsel submitted that the legislative changes have introduced an onus on the party seeking to relocate a child’s residence, or that the ultimate test is other than the best interests of the child. There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
…
18. In C v T [2006] FamCA 1198 Strickland J determined a case involving a proposed relocation from Australia to the United Kingdom. His Honour found, at para. 116, that the changes brought about by the Family Law (Shared Parental Responsibility) Act 2006 did not alter the approach to be taken to these cases and that the assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the Family Law Act 1975. However, his Honour noted that the object, principles and factors to be taken into account in determining what is in a child’s best interest, and the presumption of equal shared parental responsibility, may very well effect the outcome in individual cases. In summary, his Honour found (at para 223) that:
‘It is imperative that these objects, principles and considerations (in s.60B) be given appropriate weight, but they do not raise a presumption against relocation, and the best interests of the child remains as the paramount consideration.’”
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
While the court must consider the benefit to the children of maintaining a meaningful relationship with both parents, this does not necessarily mean maintaining the optimum relationship. Further, a meaningful relationship is not necessarily a product of the quantity of time a parent and child spend together. As Brown J said in Mazorski & Albright (above) of the meaning of “meaningful relationship”, after considering a number of relevant dictionary definitions-
“26. What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
The children have clearly benefited from being able to develop a meaningful relationship with both parents under the parenting arrangements up to and since separation. Since separation, that has involved the children living with the mother and spending time with the father on alternate weekends and for half of school holidays.
The parents have honest and genuinely held, though divergent, views about whether a move to Victoria as the mother proposes will adversely affect the children's ability to maintain a meaningful relationship with the father.
The expert who prepared the Family Report was not prepared to say that the move would be detrimental to the children when specifically asked to comment on the effect of the change on the children's relationships with the father and other significant persons. While he was of the opinion that A would, subject to certain conditions, probably adjust to the change, and that he had a “hunch” that the two younger children would follow A’s lead, he did express the opinion that the children needed to know that the father was still involved in their lives, and that physical contact was “far preferable” to telephone contact for a child of G’s age.
The effect of this evidence in my view is that while the children could maintain a relationship with the father by seeing him in school holidays, particularly for G this will more likely than not be a diminished relationship, and that whether the children adjust satisfactorily to a move depends among other things on the children not feeling isolated, and feeling happy and secure.
Whether or not the children will in fact feel isolated, or feel happy and secure, cannot be reliably predicted. However, with three moves of residence and two changes of school in the last 12 months, and with the possibility that A’s behaviour that lead to his suspension in September may have been influenced by the changes in his life that had just occurred, there must be some concern that the children, or at least A, may not, at least initially, feel happy and secure if there is another move. And it cannot be ignored that the most recent move entailed a return to a school with which he was familiar and where he says he has many friends.
I have concerns that the diminution in the relationship of G with her father that would flow from the reduced face to face contact a move to Victoria will entail, will, considering her relatively young age, deprive her of the opportunity to maintain a meaningful relationship with him.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not relevant.
Assessment of relevant additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
I accept the expert’s evidence that A’s statement about wanting to go to Victoria was neither a firm nor a mature wish, and that no weight should be attached to it. I also accept the expert’s evidence that the two younger children displayed no conception of the current issues, and to the extent the mother gave unchallenged evidence suggesting the children had expressed views in support of the move to Victoria, I am satisfied those views should be given no weight.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
All three children have a close attachment to both parents, and have good relationships with their step-mother, their half siblings, the paternal grandparents, and the maternal grandparents. I am also satisfied they have relevant relationships with the other members of the father's extended family, including his sisters, with whom the children regularly interact when with the father.
I have already indicated that a move to Victoria will more likely than not result in a diminished relationship between G and her father. I am also satisfied that it would result in a diminution in her relationship with her step-mother, half siblings, and members of the father's extended family.
(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
I am satisfied that, despite difficulties in their relationship, both parents have commendably displayed a commitment to maintaining both their own and the other parent’s close and continuing relationship with the children. I agree with the opinion expressed by the expert who prepared the Family Report that the differences of opinion regarding A’s ODD stemmed from poor communication between the parents and a lack of consultation between the father and the child’s doctor.
It is worthwhile noting that despite the poor communications, the parties have nonetheless been able to communicate sufficiently for the mother to keep the father informed about diagnoses and treatment programs for the boys, the father and his wife have been able to raise with the mother their concerns about the diagnoses, and the treatment programs for both boys have been followed when they were in the father's household.
This in my view is a neutral consideration.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is a very significant consideration in a matter such as this. While the expert was not prepared to express an opinion that a move to Victoria would be detrimental to the children, there are nonetheless a number of concerns.
I have already found that a move to Victoria and the resultant reduction in the frequency of the face to face time the children will be able to spend with the father will more likely than not lead to a diminution in the relationship of G with her father, step-mother, half siblings and other members of the father's extended family, including the paternal grandparents.
I am concerned at the possible impact on A and D of another move. They both have particular behavioural problems, and related diagnosed conditions. A move will be unsettling to them. They will be moved from the school they have attended for the majority of their school lives; they will be moved from friends and peers; they will be moved from school staff, including counsellors, with whom they have been dealing in circumstances where both boys were suspended shortly after the move back from Exxx but seem now to be more settled; they will be moved from their treating paediatrician; and the frequency of their time with the father, step-mother, half siblings and members of the father's extended family will be significantly reduced.
The mother is unable to say what school the children will attend or what support services may be available at any of the schools the children may possibly attend. There is no evidence of the availability of an alternate paediatrician, although I will proceed on the basis an appropriate specialist would be reasonably available.
If the children did not move to Victoria, there is no guarantee the children would not move school in any event. However, subject to being able to secure accommodation that enables her to do so, the mother intends keeping the children at their current schools if she cannot relocate, suggesting she herself understands there are advantages for the children in avoiding, if possible, another change of school.
Another relevant matter under this consideration is that the mother's proposal to move to Victoria is in fact a proposal for two moves in about two years, first to Sxxx, then to Nxxx, creating ongoing uncertainty and disruption for the children, and potentially impeding them forming lasting friendships with their peers.
On the other hand, a move to Sxxx will mean the mother will have the support of her mother. The mother said this is important to her, and I accept that her mother has given her significant support and assistance in the past. However, the significance of this in my view is put into perspective by the fact that the mother's original proposal was not to move to be near her mother in Victoria, but to be about three and a half hours drive from her.
Another advantage of a move to Sxxx is that the children will have a closer relationship with their maternal grandparents. I note A seemed to suggest a slightly closer relationship with his maternal grandmother than his paternal grandparents.
The mother also said, and I accept, that a move to Sxxx will mean more affordable rental accommodation is available to her, and she has better prospects of employment consistent with her role as the children's primary carer, through her step-father and in co-operation with her mother. I accept that improved financial fortunes in the mother's household would benefit the children.
(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
The mother's evidence about the necessary travel arrangements for the children to spend time with the father is vague and uncertain. The cost is unknown, as is the parties’ ability to meet that cost. The mother's proposal is predicated on the children travelling from Victoria to Sydney four times a year to spend significant block periods with the father. The expert expressed the opinion that if the children relocated, it was important that they have regular time with the father in Sydney as the mother proposed. Clearly any uncertainty about the viability of these arrangements raises serious questions about whether the move may be detrimental to the children. While the mother does not bear the onus of proof in the traditional adversarial sense to show that what she proposes is in the children's best interests, she was uniquely the party able to provide evidence to demonstrate the practical viability of her proposals, and in my view has left unanswered questions about this.
(f) The capacity of each of the child’s parents and 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
In my view both parents have demonstrated a capacity to meet the children's needs. In my view this consideration is neutral.
(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
This matter is not relevant beyond my comments about the children's views.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated an appropriate attitude to the children and their responsibilities as parents. The criticisms made of each, in my view are not of major import in this matter, and I regard this consideration as neutral.
(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
No option appears less likely than another to lead to further litigation.
The remaining additional considerations under s.60CC(3) are not in my view relevant.
Consideration of s.60CC(4) and (4A)
There is nothing relevant to add beyond what has already been said, especially in relation to the consideration under s.60CC(3)(c).
Assessment of competing proposals and other options
The mother's proposal to move with the children to Victoria will have the advantages that the mother will have more affordable accommodation available, she will have part time employment available, she will have the support and assistance of her mother and step-father, the children will have a closer relationship with their maternal grandparents, and there may be improved financial fortunes in the mother's household that would be of benefit to the children.
However, the children's time with the father, their step-mother, half siblings and other members of the father's family will become significantly less frequent, and its total duration will be less. The father would be unable to participate in significant events in the children's lives, and vice versa. For example, the father would not be able to attend school functions to which parents are invited, or the children's sport or other extra curricular activities, or celebrate the children's birthdays with them. Further, I am satisfied G’s relationships with the father and members of his household and extended family will diminish, there is a risk of an adverse affect on the behaviour of A, D or both from the disruption of the move, it is unclear what support services may be available to the two boys in any school they may attend, the mother's transport arrangements for the children to spend time with the father are vague and uncertain, and the move the mother now seeks to make is an interim one, as she proposes to move a significant distance again in about two years’ time. While a further move as the mother foreshadows in two years time would not further impact on the children's relationships with the father and members of his household or extended family, it may further unsettle the boys and may adversely impact on their behaviour problems.
The option of the children living with the mother within a 70 kilometre radius of the father’s present home would mean no diminution in the time, either as to frequency or total duration, the children spend with the father, it would ensure G’s relationships with the father and others in his household and extended family is not diminished, the father will retain the opportunity to participate in the children's school, sport and extra curricular activities and celebrate their birthdays with them, and it reduces but does not remove the risk of the children changing schools and the consequent disruption and possible negative consequences for the two boys. There remains a risk the children may nonetheless have to change schools if the mother cannot secure suitable accommodation near enough to Kxxx school for the mother to reasonably get the children to and from that school. The children living with the mother in reasonably close proximity to the father would continue the parenting regime in place for some years, a regime that appears to have served the children's interests well.
On the other hand, the children will have a lesser relationship with the maternal grandparents, the mother will not have the support and assistance of her closest family member, her mother, the finances in the mother's household are likely to be more constrained than if the mother moved to Victoria, and the mother will be bitterly disappointed at being thwarted in her genuine and not unreasonable wish to move to Victoria.
While the expert was unable to assess whether the mother's disappointment may impact on her parenting capacity, I proceed on the basis that it may to some extent, but that the impact is more likely than not to be relatively minor and short term. I base this finding on the fact that while the mother will be bitterly disappointed, she has demonstrated an ability in the past to meet the children's needs despite turmoil in her personal life, such as the break down in her relationships with the father and with her former de facto partner last year.
The option of the children spending equal time with each parent seems impractical in the sense that the father is not confident of being able to provide for a total of six children in his household on a regular basis. While he can and does do so for half the school holidays, and accepts the mother's proposal that he have the children for all the shorter holidays and for four weeks at Christmas if the mother and children move to Victoria, school term mid week arrangements seem problematic on other than an occasional basis, both he and his wife working, albeit his wife is currently on maternity leave. It is an option neither party supports. The father concedes that it is in the children's best interests to continue in the mother's primary care, even if that means them moving to Victoria. In those circumstances, I am satisfied that an equal time arrangement is neither practical nor in the children's best interests.
The option of a substantial and significant time arrangement, for example providing that the children spend time with the father on alternate weekends, half school holidays and some mid week time during school terms, similarly seems unworkable in the father's household. He was reluctant to accept the mother's proposal that if she could not relocate, his weekend time with the children end before school on Monday rather than on Sunday because he did not know where the mother and children would be living and the children going to school, which meant he did not know whether he and his wife could make the necessary arrangements to return the children to school. While he indicated an ability to deliver the children to their current school, and would accept the children's weekend time with him ending at school on Monday morning if the children continued at this school, neither he nor the mother supported the children spending any more time with him during the school week when this option was specifically raised by me.
While the Act evinces a clear legislative intent in favour of children spending the maximum time with each parent consistent with their best interests, and it is difficult to discern anything other than potential benefit to the children from spending some mid week time with the father, if such an arrangement cannot be made to work in a practical sense, then it is not in the children's best interests. I am also concerned about what benefit children would gain from spending time with a parent reluctant, perhaps for entirely appropriate reasons, to have that time with them. On balance, I accept that a substantial and significant time arrangement is not practical and is not in the children's best interests.
Decision
The children's best interests are not the only relevant consideration. The mother's freedom of movement is a very significant factor. However, the mother's freedom of movement must give way to the children's best interests where the two conflict. If I am satisfied the parenting option involving the children remaining in the Sydney area is in the children's best interests, then the mother cannot move the children to Victoria. If I am satisfied the parenting option involving the children living with the mother in Victoria is in the children's best interests, then she should not be impeded in her desire to relocate. If I cannot discern an overall advantage for the children's interests in one parenting proposal over the other, then the further consideration of the mother's right to freedom of movement must result in the court not impeding the mother’s wish to live with the children in Victoria.
The mother's stated reasons for wishing to move with the children to Victoria are not unreasonable. She was not challenged in her evidence about rents being cheaper and having better job prospects there. Improved financial fortunes in the mother's household must benefit the children. While she disputed saying this, I accept the evidence of the expert that the mother also wishes to make a “fresh start” after the breakdown of her former de facto relationship in August 2007, a matter the expert referred to as a psychological reason for the move. That too is a not unreasonable basis for the mother's wish to move. Being able to implement a not unreasonable wish to move may vicariously benefit the children in the sense that the mother will be happier than if she is prevented from relocating.
However, I am concerned that the negatives of the mother's proposal to live with the children in Victoria outweigh the positives. The objects of Part VII include 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 (s.60B(1)(a)). That clearly becomes more difficult to achieve if the children move to Victoria. The advantages to the children of moving to Victoria – a closer relationship with the maternal grandparents, the mother having the support of the maternal grandparents, and the potential for the mother's household finances to improve – in my view are clearly outweighed by the risks of the move to the two boys in relation to their behavioural problems, the risk to G’s important relationships with her father, step-mother and half siblings, the uncertainties about the necessary travel arrangements for the children to spend time with the father, and the fact that this move is but an interim one. For these reasons, bearing in mind the preponderance of benefits over disadvantages of the option of the children living with the mother in Sydney, I am satisfied that what will best promote these children's interests is to remain living with the mother in Sydney.
I have turned my mind to whether an arrangement is possible that would permit the children to live with the mother in Victoria and would address the disadvantages of the current proposal of the mother to a sufficient extent that it would be at least as beneficial to the children’s interests as remaining in Sydney. Such an arrangement to my mind would need to enable the children to spend face to face time with their father, step-mother and half siblings more often than the mother's proposal contemplates. That additional time could either be in Sydney or Victoria or split between the two. If it were possible for the children to have face to face time with the father and members of his household at least once or twice each school term, this would ameliorate the adverse effects on G’s relationships with the father and members of his household that I have found only seeing the father four times a year will cause.
However, there are two significant problems with such an arrangement. First, there is no evidence to show whether the parties could afford it. They would either have to meet the additional costs of the children travelling to and from Sydney during school term, or the additional cost of the father and his family travelling to Victoria in school term and of accommodation sufficient for two adults and six children while there. The travel would need to be by air, whether the children come to Sydney or the father goes to Victoria, to provide worthwhile time on a weekend during school term for the children and the father to interact. This would be a not inconsiderable additional cost, and where the travel arrangements even for four visits a year are vague and uncertain, I cannot be satisfied the parties could afford this level of travel.
The second significant problem is that the other disadvantages of a move to Victoria remain, in particular the risk that the significant disruption to the two boys may exacerbate their behavioural problems, and the fact that the move to Sxxx is only an interim move, the mother proposing in fact two significant moves within about two years.
For these reasons, I am not satisfied that at this time and on the current evidence parenting arrangements can be made with the children in Victoria that would be at least as advantageous to the children overall as the current arrangements.
If the children remain in the Sydney area, the father sought a minor adjustment to the calculation of the school holiday time. No submissions were made on behalf of the mother in opposition to his proposal, and I accept it.
The mother also sought that the father's weekend time end on Mondays before school. If the children are at their present school or another school located no further from his present home, the father indicated he could return the children to school on Monday and would wish to do so. I will therefore make the order the mother seeks in this regard, subject to the proviso that it only apply if the children are attending schools no further from the father's present home than their present school.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Halligan FM.
Associate: Deanne Bush
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