Ryder & Roby
[2009] FMCAfam 416
•24 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RYDER & ROBY | [2009] FMCAfam 416 |
| FAMILY LAW – Parenting – relocation – mother seeks relocation to New Zealand with two children aged 10 and 7 – relocation would advance step-father’s career – both mother and father re-partnered – best interests of the children – substantial and significant time. |
| Family Law Act 1975, ss.60B(2)(a), 60CA , 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4), 65DAA(5) |
| AMS v AIF (1999) 199 CLR 160 F v F (2007) 38 Fam LR 52 |
| Applicant: | MS RYDER (FORMERLY ROBY) |
| Respondent: | MR ROBY |
| File Number: | MLC 9906 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 5 February 2009 |
| Date of Last Submission: | 6 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swart |
| Solicitors for the Applicant: | Baird & Mcgregor |
| Counsel for the Respondent: | Mr Whitchurch |
| Solicitors for the Respondent: | Heinz & Partners |
ORDERS
The parties have equal shared parental responsibility for the long term care, welfare and development of the children, [X] born in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (collectively “the children”).
The children live with the Wife.
The children spend time and communicate with the Husband as follows:
(a)During school terms each alternate weekend:
(i)from the commencement of Term 3, 2009 from the end of school Friday until the commencement of school on Monday, commencing Friday 17 July 2009 (save that on that day the time commence at 6.30pm as it is [Y]’s birthday);
(ii)from the commencement of Term 4, 2009 from the end of school Thursday until the commencement of school on Monday;
(iii)from the commencement of Term 1, 2010 and thereafter, from the end of school Thursday to the commencement of school on Tuesday;
(b)Provided the Husband is in substantial attendance, and provided the Husband has given the Wife thirty (30) days written notice of his intention to spend time with the children:
(i)during school term holidays for one half of the school term holidays, by agreement, and in default of agreement the second half of all school term holidays in 2009 and alternate years thereafter, and the first half of all school term holiday periods in 2010, and alternate years thereafter;
(ii)during the long summer holidays for one half of the long summer holidays by agreement, and in default of agreement the second half of the long summer holidays in 2009/10 and alternate years thereafter, and the first half of the long summer holidays in 2010/11, and alternate years thereafter with such time to be subject to Order (iii) below;
(iii)from 3pm Christmas Day until 3pm Boxing Day in 2009 and each alternate year thereafter, and from 3pm Christmas Eve until 3pm Christmas Day in 2010 and each alternate year thereafter;
(c)On the children's birthdays, the Husband's birthday and Father's Day by agreement and in default of agreement for a period of three (3) hours on school days and for a period of six (6) hours on non school days; and
(d)By telephone or internet twice weekly (when they are not otherwise spending time with the Husband).
Notwithstanding any other provisions of these orders the children spend time with the Wife as follows:
(a)From 3pm on Christmas Eve in 2009 until 3pm Christmas Day in 2009, and each alternate year thereafter and from 3pm on Christmas Day in 2010 until 3pm Boxing Day in 2010, and each alternate year thereafter; and
(b)On the children’s birthdays, Mother's Day and the Wife's birthday for a period of three (3) hours on school days and for a period of six (6) hours on non school days.
In the event that changeover occurs on a non school day the Wife will be responsible for delivering the children to the Husband's home at the commencement of the Husband's time and the Husband will deliver the children to the Wife's home at the conclusion of his time with the children.
Each of the parties:
(a)Advise and keep the other advised of their current residential address and telephone number;
(b)Advise and keep the other advised of any medical or health issue suffered or experienced by the children when the children are in his or her care;
(c)Authorise the children's schools and kindergarten to provide school reports, photograph order forms, memoranda and like documents to the other;
(d)Be entitled to attend school interviews, sports days and events which parents would normally attend; and
(e)Keep one another informed about the children's activities, education and development.
Unless otherwise agreed in writing, the Wife obtain and the parties maintain a communication book to travel with the children between the household of each parent.
The parties, their servants and agents be and are hereby restrained from denigrating or abusing the other to or in the presence or hearing of the children.
Each party participate forthwith in a post separation parenting program.
Should the parties have difficulty resolving issues in relation to the children they will attend upon Family Dispute Resolution in an attempt to resolve those issues prior to issuing proceedings.
All extant applications be otherwise dismissed.
AND THE COURT NOTES:
A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ryder & Roby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9906 of 2008
| MS RYDER (FORMERLY ROBY) |
Applicant
And
| MR ROBY |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
This case involves an Application by the applicant wife Ms Ryder (formerly Roby) who is seeking various parenting orders including a relocation of the two children of the marriage to New Zealand.
The Application is opposed by the respondent husband MR ROBY who is seeking different parenting orders, including an order that the child live with him (in the event the wife relocates to New Zealand) or a shared parenting arrangement (in the event that the wife remains in Ballarat).
There are two children of the marriage, namely, [X] (“[X]”) born in 1999 and [Y] (“[Y]”) born in 2001 (“the children”). There are currently no formal orders in place in respect of the children. They currently live with the wife and spend time with the husband each alternate weekend from Friday afternoon until Sunday afternoon, plus school holidays and other times by agreement.
The matter came before her Honour Federal Magistrate Bender for directions on 26 November 2008 and on that occasion her Honour ordered that a family report be prepared. In addition her Honour noted that the children were to spend time with their father on agreed times and dates during the 2008/2009 school holidays.
The parties attended before Family Consultant Trevor Holland for the preparation of a family report on 14 January 2009. This report is discussed shortly.
The matter came before me for hearing over two days commencing
5 February 2009. Both parties were legally represented.
Background
The applicant Ms Ryder (formerly Roby) was born in 1974 and is currently aged 34 years. The respondent husband was born in 1975 and is currently aged 34 years. Both parties were married in Victoria and are Australian citizens.
The parties met in 1994 and cohabited prior to their marriage in November 2003. As previously stated, their two children [X] and [Y] were born in 1999 and 2001 respectively. The parties separated on or about 12 July 2005. A divorce order was made on 17 November 2006.
Following separation (in or about October 2005) the wife commenced a relationship with Mr R and they subsequently married in September 2007. Their child [Z] was born in 2008.
The husband commenced a relationship with Ms M in March 2007 and they have been cohabiting since December 2008.
In his family report dated 28 January 2009, Trevor Holland describes the parties background in paragraphs 8-11:
“8. …Ms Ryder describes the relationship deteriorating after the birth of [X]. Ms Ryder feels that the marital relationship and family circumstances were not intimate, active, or involved and describes Mr Roby as unmotivated, under involved, and detached from family life and goals.
9. Mr Roby is of the opinion that the relationship was relatively functional and happy although he acknowledges it was a “bit rocky” towards the end. Despite this, he states that he had no idea things were “that bad” and was surprised when Ms Ryder left he reports being “devastated” after the relationship ended.
10. The post separation relationship was amicable between 2005-6 until the first proposal to relocate. During this period Mr Roby spent time with the children on a weekly basis for two evenings a week the times and days varied to suit his shift work requirements. In 2006 this changed to the current arrangement of each alternate weekend. Ms Ryder alleges that Mr Roby has spent very little holiday time with the children despite her trying to encourage it; this is disputed by Mr Roby.
11. The post separation cooperation and communication appears to have deteriorated after 2006, and while they both report cordial and functional interaction around the children’s arrangements mainly at changeovers there is little communication about the children’s ongoing lives or needs.”
The proposals of the parties
In her Initiating Application filed 30 October 2008 the wife seeks the following orders:
“ Final Orders sought
1. That the Father and Mother have equal shared parental responsibility for the long term care, welfare and development of the two children;
[X] born in 1999, and
[Y] born in 2001
2. That the long term care, welfare and development of the children include; (a) Education including primary, secondary and tertiary (b) Health care, medical and dental issues (c) Religious, Cultural and social activities
3. That in respect of each of the issues concerning the long term care, welfare and development of the children the Mother and Father shall: (a) Consult with the other person in relation to the decision to be made and; (b) Make a genuine effort to come to a joint decision about that issue.
4. That the children live with the Mother.
5. That the Mother have the responsibility for the day to day care and control of the children when they are living with her.
6. That the Father have the responsibility for the day to day care and control of the children when they are spending time with him.
7. That the children be permitted to leave the Commonwealth of Australia and be permitted to live in the in [T] in the South Island of New Zealand, not withstanding that the consent of the Father has not been obtained.
8. That the Father spends time and communicate with the children as follows;
(a) New Zealand school holidays as follows:
(i) For the mid-year school holidays, for two weeks commencing from the close of school (subject to flight availability).
(ii) For three weeks of the Christmas school holidays from the 28th of December until the 21st of January of the following year.
(iii) For the April and September holidays from the end of term until one day prior to the commencement of school, subject to clause 11(b).
(b) Christmas day shall be shared by arrangement between the parties, and shall occur at Ballarat.
(c) On Father’s Day, the Father’s birthday, Easter Sunday, the Children’s birthday, telephone or internet time with the children for at least half an hour on those days, to fall between 6 pm and 8pm (New Zealand Time) on each of the said days.
(d) All reasonable telephone and internet time for a period of at least on hour per week and by default of Wednesday evenings between 6 pm and 7 pm New Zealand Time.
(e) At such other times as agreed between the parties
9. For internet contact to occur the parties undertake to obtain and continue to maintain their respective computer hardware and software programming so that the Father may spend Internet time (chat, including Skype), with the children. Each party should be liable for their own costs in respect of such telephone and internet expenses and the expenses of obtaining such hardware and software.
10. The Father and the Mother shall:
(a) keep each advised of their respective contact telephone numbers and addresses and any changes thereto.
(b) advise the other forthwith of any illness, injury or other health mater that the children suffers from; and
(c) ensure that all expert recommendations regarding the children’s health, education, development or emotional wellbeing are fully implemented.
11. Travel and Travel Costs
(a) That the mother shall bear the burden and pay for the travel costs associated with the children spending time with the Father during the midyear and Christmas school holidays, such costs to include the return airfares from New Zealand to Australia via the Christchurch Melbourne International Airport.
(b) That the Father shall bear the burden and pay for the travel costs associated with the children spending time with the Father during the September and April school holidays, such costs to include the return airfares from New Zealand to Australia via the Christchurch International Airports.
(c) In the event of airline travel, the Mother shall ensure that the children are delivered to the Christchurch International Airport for the children to be transported as unaccompanied minors on Air New Zealand flight to Melbourne International Airport.
(d) The Father undertakes to be available to collect the children from the Melbourne Airport upon their arrival.
(e) The Mother shall and undertakes to be available to collect the child from the Christchurch International Airport upon the children’s arrival at the end of the visit.
(f) The Father undertakes at the end of his time with the children deliver the children to the Melbourne International Airport (Air New Zealand) terminal for the children to be transported as unaccompanied minors to New Zealand.
(g) The parties are to communicate (preferably in writing) the said flight details to each other seven days prior to the travel taking place.
(h) The above travel arrangements shall only apply when the children are comfortable flying as unaccompanied minors. The mother undertakes at her own expense to accompany the children on their first two visits to Australia.”
Interim or procedural orders sought
1. That all time limits be abridged on an urgent basis.
2. In the event that the Respondent opposes the proceedings, the following Orders;
(a) That the Respondent file all opposing documents within 14 days of him being personally served.
(b) For a family report pursuant to section 62(g)2 of the Family Law Act of 1975 the parties and the said children consultant (sic) to attend upon a family consultant to be nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia for the purposes of preparing a Family Report to be given to the Court as soon as circumstances permit. The family report is to deal with the following issues;
(i) any wishes expressed by the said children, any factors that could affect the weight that the Court should place upon those wishes
(ii) whether it is in the children’s best interests to live with the Mother and be permitted to relocate to [T] in New Zealand
(iii) matters set out in sections 60CC 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Law Consultant considers important to the welfare or best interests of the children.
(iv) The parties are to comply with all reasonable directions as to attendance upon the family consultant as and when required by the Family Consultant!
3. As per Final Orders sections 7, 8(a) i & ii, 8(c), (d) & (e), 9, 10, 11, and 12.”
In his Response filed 24 November 2008 (and re-stated in his Case Outline document dated 4 February 2009). The husband sought the following orders:
“ Final orders sought by you the Respondent
1. That the parties have equalled shared parental responsibility for the children of the relationship, [X] born 4 April 1999 (“[X]”) and [Y] born 17 July 2001 (“[Y]”) (“the children).
2. That the children live with the parties on a shared care basis with changeover to take place on a Monday evening at the conclusion of school during school term.
3. That the children live with the parties on a shared care basis during school term holidays by agreement, and in default of agreement for the first week with the father, and the second week with the mother.
4. That the children live with the parties on a shared care basis during the long summer holidays by agreement and in default of agreement for the first two and a half weeks with the father in even numbered years, and for the first two and a half weeks with the mother in odd numbered years.
5. That the mother be restrained by injunction from altering the residential address of the children from a 15 kilometre radius of the Ballarat Post Office, unless by consent in writing between the parties or an Order of the Court.
IN THE ALTERNATIVE, AND SHOULD THE MOTHER RELOCATE TO NEW ZEALAND
6. That the parties have equalled shared parental responsibility for the children of the relationship, [X] born in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (“the children”).
7. That the children live with the father.
8. That the children spend time and communicate with the mother as is agreed between the parties from time to time, but with the father to facilitate the children spending at least 10 days of each school term holidays with the mother, and 4 weeks of the long summer holidays with the mother, and the parties to bear equally the costs of the childrens’ (sic) travel to spend time with the mother.
Interim or procedural orders sought by you the Respondent
1 That the parties have equalled shared parental responsibility for the children of the relationship, [X] born 4 in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (“the children”).
2. That the children live with the parties on the following basis:
(a) For the remainder of 2008 with the father each alternate weekend and with the Mother all other times;
(b) During 2009 and thereafter,
(i) During school terms on a shared care basis with changeover to take place on a Monday evening at the conclusion of school,
(ii) During school term holidays, by agreement, and in default of agreement for the first week with the father, and the second week with the mother; During the long summer holidays by agreement and in default of agreement for the first two and a half weeks with the father in even numbered years, and for the first two and a half weeks with the mother in odd numbered years.
3. That the mother be restrained by injunction from altering the residential address of the children from a 15 kilometre radius of the Ballarat Post Office, unless by consent in writing between the parties or an Order of the Court.
IN THE ALTERNATIVE, AND SHOULD THE MOTHER RELOCATE TO NEW ZEALAND
4. That the parties have equalled shared parental responsibility for the children of the relationship, [X] born in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (“the children”).
5. That the children live with the father.
6. That the children spend time and communicate with the mother as is agreed between the parties from time to time, but with the father to facilitate the children spending at least 10 days of each school term holidays with the mother, and 4 weeks of the long summer holidays with the mother, and the parties to bear equally the costs of the childrens’ (sic) travel to spend time with the mother.”
Family Report
In accordance with the orders made by her Honour Federal Magistrate Bender on 26 November 2008 a family report was prepared by Trevor Holland on 21 January 2009 and was released to the parties on
28 January 2009. The report was admitted into evidence with the consent of both parties, with Trevor Holland being present for the purposes of cross examination. As previously stated, Trevor Holland conducted his interviews with the relevant parties and their children on 14 January 2009. At paragraphs 3-7 of his report, Trevor Holland identifies the issues in dispute:“3. Ms Ryder is seeking to relocate to New Zealand with the children and her partner Mr R. They met in October 2005 and were married in September 2007 there is one child to the relationship [Z] aged 6 months. Mr R has no children from any previous relationships and is an [omitted] with [M] (sic) foods. Ms Ryder has been offered and accepted a promotional position with his company in [T], in the South Island of New Zealand.
4. Ms Ryder is seeking to relocate with the children and proposes that Mr Roby spend time with children in the New Zealand mid year school holidays for 2 weeks, for 3 weeks in the Christmas holidays, and for the duration of the April and September holidays. Ms Ryder proposes to pay all costs associated with the mid term and Christmas holidays and for Mr Roby to bear the costs of the April and September holidays.
5. Ms Ryder maintains that the move is an opportunity to advance the financial and emotional well being of the family as a whole, and that there is little opportunity for this if the family remains in Ballarat. Ms Ryder alleges that Mr Roby has been under involved with the children since the separation and that she has had to facilitate the children’s time with Mr R around his shift work. Ms Ryder is of the opinion that the time offered is sufficient for the children to maintain a meaningful relationship with
Mr Roby, and with modern communications such as the internet and “Skype” reasonable levels of continuity can be maintained.
6. Mr Roby opposes the move and is seeking for the children to remain in Ballarat. He proposes a week about shared care arrangement and if Ms Ryder moves to New Zealand for the children to live with him and spend time with Ms Ryder for
10 days of each of the school term holidays, and 4 weeks of the Christmas holidays with the cost of travel shared equally between the parties.
7. Mr Roby denies the allegation that he has been under involved with the children since separation. He is of the opinion that the quality and continuity of his relationship with the children will be significantly diminished if the children relocate to New Zealand.”
Trevor Holland describes his interview with the wife in paragraphs 13 through 17 of his report. In summary, the wife maintains that the husband has been “uninterested and unmotivated in family life” [1] and describes the husband’s interactions with the children as limited. It is also clear that she is of the opinion that her relocation with the children to New Zealand would have “little impact on the relationship between Mr Roby and the children as it currently stands.” [2] The wife was also “clear” in stating that she would not consider relocating without the children and is “opposed to Mr Roby’s proposal for shared care if they remain in Victoria.” [3]
[1] Family Report of Trevor Holland dated 28 January 2009 at paragraph 13 (“Family Report”).
[2] Ibid, paragraph 15.
[3] Ibid, paragraph 16.
Trevor Holland describes his interview with the husband in paragraphs 18 through to 24 of his report. In particular at paragraph 24, Mr Holland states:
“24. Mr Roby is of the opinion that his relationship with the children will be significantly diminished if they relocate and as a result they will be psychologically and emotionally disadvantaged by the move.”
Nevertheless, Mr Roby did indicate to Mr Holland that if the Court were to permit the relocation of his children, “he would come to terms with letting them go” [4] but that he had not thought through the consequences of such a decision.
[4] Ibid at paragraph 22.
Trevor Holland describes his interview with [X] at paragraphs 25 through 30 of his report. In particular at paragraph 27, Mr Holland states:
“27. [X] stated that she wanted to go to New Zealand and if it was her decision she would go. She stated that she would be sad to leave her friends and school but thought she would adjust quickly once she got there. [X] thought this would be assisted by getting involved in sport and intends to keep her basketball up. She pointed out that she is good at making friends and did not think this would be a problem and felt it would take about a year to settle in to the new place.”
At paragraph 28 Mr Holland reports:
“28. [X] stated that she loves her father and knows it will make him sad and that he doesn’t want them to go. She anticipated feeling sad about leaving her father but felt that catching up on holidays and talking on the phone would be enough to help with her sadness. [X] felt that once everyone got used to it the sadness would dissipate and she would look forward to the holidays and catching up with extended family in Ballarat. She finds the prospect of living in another country exciting and special and reiterated that she would be sad if the Court didn’t allow them to go.”
At paragraph 29 Mr Holland describes [X]’s views with respect to residing with the husband either full time or under a shared care arrangement:
“29. [X] was clear and unequivocal about the prospect of living full time with her father and the option of shared care; she stated that her mother has always looked after her and she did not want, and could not imagine, living with her father full time or in a shared care arrangement. [X] felt that she would miss her mother to (sic) much.”
Mr Holland describes his interviews with [Y] at paragraphs 31 through 34 of his report. At paragraph 32 he states that [Y]:
“…understood the meeting to be about “the fight over going to New Zealand”. He stated that he would like to go but acknowledged he would miss his father and this was his greatest concern about the proposal.”
It is clear that from paragraph 33 of his report that [Y] preferred to reside on a full time basis with his mother and seemed ambivalent whether he lived in Ballarat or went to New Zealand provided that he resides with his mother. Mr Holland then states at paragraph 34:
“…At the end of the interview [Y] reiterated his desire to stay with his mother and informed me he did not want to be separated from his mother and wanted to “grow up with my little sister and go to New Zealand””.
Mr Holland describes his observations of the husband with the children at paragraphs 35 to 37.
Mr Holland also interviewed the respective partners of the parties (Mr R and Ms M) at paragraph 38 of his report.
Trevor Holland provides his evaluations and recommendations in paragraphs 39 through 57 of his report. Mr Holland specifically deals with the issue of a shared care arrangement in paragraphs 42 through 49 of his report. At paragraph 42 Mr Holland states:
“42. Mr Roby’s proposal’s (sic) for shared care appears to have been some what reactive to the application for relocation. He acknowledges considering extra time with the children at some time in the future, but was hoping to consolidate his current relationship and living circumstances first, and describes his plans as being somewhat preempted (sic) by the current application.”
After describing the prerequisites that would enable a constructive shared parenting outcome, Mr Holland states at paragraph 45:
“45. While the level of conflict between the parties’ (sic) is well encapsulated their parenting values are significantly different, and their communication and joint problem solving is poor.
Mr Roby appears to have a laissez-faire approach in which there is little planning or proactive intervention. He appears to have relied on Ms Roby for keeping him informed and organizing the children’s activities and time tables, and has made no approach to the school to become involved since the separation.
On the basis of the information before me it seems unlikely that Mr Roby would be organizationally capable of participating in a shared care arrangement on an equal basis with Ms Ryder at this point in time. In this context a shared care arrangement is contraindicated and not recommended.”
At paragraph 48 Mr Holland states:
“48. The history of the case indicates that the primary attachment of the children is with Ms Roby, and both children were clear about their wish to remain living with their mother what ever the outcome. She has been the uninterrupted full time care giver to the children since birth. It is highly likely that both children would experience psychological and emotional difficulties if separated from her at this point in their development. Mr Roby’s proposal for the full time care of the children is contraindicated and not recommended.”
At paragraph 49 Mr Holland states:
“49. However, should the children remain in Victoria the current arrangement does not reflect the level of attachment and warmth the children share with their father. Ms Ryder’s view of the children’s relationships with Mr Roby tends to undervalue the level of attachment and warmth. In these circumstances it is recommended that Mr R’s (sic) [Mr Roby’s] time with the children be substantially increased.”
Mr Holland provides his evaluation of the proposed relocation to New Zealand in paragraphs 50 to 57 of his report. At paragraph 50 Mr Holland states:
“50. Mr Roby’s belief that his relationship with the children will be diminished if they are relocated to New Zealand, and that they will be psychological (sic) and emotionally disadvantaged if they are not able to maintain a meaningful relationship with him is somewhat born out in the literature and studies in this area. Clearly the level of intimacy and proximity Mr Roby has to the children’s lives will be reduced by the proposal, and he will not enjoy the level of contact and the regular face to face interaction that enables him to share intimately in the children’s lives with the same consistency.”
At paragraph 52, while Mr Holland acknowledges that should the relocation proceed there may be ways to minimise any deterioration of the relationship between the husband and the children, in particular [Y], he indicates that the relationship would be at “a qualitatively poorer level”. While Mr Holland states that the wife has shown known “no overt propensity to undermine or restrict Mr Roby’s relationship with the children to date”[5], he does question the wife’s motivation to “consistently refresh and reinforce the children’s relationship with their father”[6] should she be able to relocate to New Zealand with the children.
[5] Ibid paragraph 54.
[6] Ibid paragraph 53.
In concluding his evaluation on the relocation, Mr Holland states at paragraphs 55 to 57 of his report:
“55. In conclusion, the relocation of children is amongst the most difficult and complex of issues addressed in the Family Law context. The driving narratives of such disputes often become linear and reductive and hinge on perceptions of winning and losing or right and wrong. This rarely reflects the complexity of the issues and needs faced by the children. Inevitably the perceptions and positions taken by the adults in the dispute have a cogent and persuasive logic, and often one is confronted with ordinary people struggling for autonomy over their lives and the maintenance of meaningful relationships.
56. The report writer has sought to provide a psychological analysis of the relationships and capacities of the children in relation to the proposals. The opinion formed is that the children’s relationship with Mr Roby would be significantly impacted by the relocation and may result in a diminution in the quality and intimacy of the relationships.
57. However, the children’s cognitive capacities are at a stage and level of development, and the proposed arrangement adequate enough for this to be ameliorated to some extent. The post separation history indicates that both parties’ have acted in a responsible manner in their relations with each other and in their interactions with the children, and there is nothing in the material before me to indicate this would not continue.”
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence. In addition, the wife’s new husband Mr R and the husband’s new partner Ms M gave evidence on affidavit and at the hearing.
Applicant wife’s evidence
The following documents were relied upon by the wife:
· Application filed 30 October 2008;
· Wife’s affidavit sworn 29 October 2008 and filed 30 October 2008 (“her first affidavit”);
· Affidavit of Mr R sworn 29 October 2008 and filed 25 November 2008 (“Mr R’s first affidavit”);
· Affidavit of Mr R sworn 12 January 2009 and filed 13 January 2009 (“Mr R’s second affidavit”)
· Trial Affidavit of wife sworn 12 January 2009 and filed 13 January 2009 (“her second affidavit”);
· Notice to admit facts filed 19 January 2009; and
· Outline of Case filed 5 February 2009.
At paragraph 9 of her first affidavit, the wife confirms that her new husband has been offered, and has accepted, an internal promotion to [omitted] manager with [M] Corporation, in [T] in the South Island of New Zealand. At the same paragraph she states that the promotion will allow her new husband “to move into a managerial position which will substantially increase both his status within the company, his future prospects. and his income.”
At paragraph 13 of her first affidavit, the wife confirms that the husband has been seeing the children fortnightly from 5.30 pm on Friday to
5.30 pm on Sunday. She alleges that the husband has not spent any meaningful time with the children during school holiday periods. At paragraph 15 of her first affidavit, the wife acknowledges that her new husband was first offered a new promotion to New Zealand in his current employment in 2006. She states that after approaching the husband with the prospect of relocation at this time, the husband refused. At paragraphs 16 and 17 of her first affidavit, the wife asserts that both children should cope well with the proposed relocation. At paragraph 20 of her first affidavit, the wife acknowledges that the children have extended family that are “entrenched and live in Ballarat.” She asserts that the maternal grandparents and the paternal grandmother both regularly spend time with the children. In addition, her new husband’s family (including his parents) also live in the Ballarat area. At paragraph 24 she asserts that her new husband will earn in excess of $80,000 in his new position. At paragraph 27 she acknowledges that the husband does not currently have a telephone landline or computer facilities, but nevertheless she indicates that should the husband be able to acquire the appropriate computer hardware and software this would enable the children to keep in contact with him via the internet (using “Skype” or similar equipment) in the event that relocation is permitted.At paragraph 28 of her first affidavit the wife details her enquiries as to the cost of international air travel between Christchurch and Melbourne. The wife also gave evidence at the hearing[7] acknowledging that it would take a full day to travel between [T] and Ballarat and she indicated that this knowledge was based on the fact that she has done the trip on at least two occasions to date.
[7] Transcript of Ryder (formerly Roby) & Roby, dated 5 February 2009 (“Transcript”), page 43, line 42.
At paragraph 29 and 30 the wife describes [T] and her intentions with respect to the children’s schooling.
The wife’s second affidavit restates paragraphs 1 to 32 of her first affidavit. At paragraph 33 onwards she provides additional information and more particularly responds to the husband’s first affidavit sworn on 21 November 2008 and filed 24 November 2008. At paragraph 35 the wife describes the husband as wanting to be a “weekend dad” and asserts that the husband never telephones the children.
In answer to a question from her Counsel, Ms Swart, as to why she has persisted with wanting to make this move, the wife responded:
“I think we've persisted because as a family unit I have priorities. I've got my children. I also have my husband, a child from our relationship. My husband's career advancement is our family's advancement. It's hand in hand. So I think with not wanting to hold him back and having to sort of live with that myself, we weighed up all the options, you know. If we seriously didn't think it was going to benefit the children we would never have continued with this proposal. It's just hard. You're torn, you're thinking - you know, you want this move. I by no means want to sever the children from their family, their extended family, by no means. But I just think it's a wonderful opportunity for us as a family unit to make this move.”[8]
[8] Transcript, page 12, lines 17-29.
The wife was cross examined at some length by Counsel for the husband Mr Whitchurch. During the cross examination the wife acknowledged her disappointment that the husband had not consented to a prior request for the wife and her partner to relocate with the children to New Zealand in 2006.[9]
[9] Transcript, page 19, in particular line 32.
The wife was also cross examined in relation to Trevor Holland’s report and in particular paragraph 56. In response, the wife indicated that she did not agree with the opinion formed by Mr Holland that the children’s relationship with the husband would be significantly impacted by the relocation and may result in a “diminution in the quality and intimacy of the relationships.” [10] When questioned further the wife indicated that she did agree that it will diminish the “relationship that he currently has” but then indicated that it would not “damage it like significantly.”[11]
[10] Transcript, page 24, lines 1-5, quoting Family Report at paragraph 56.
[11] Transcript, page 24, lines 10-11.
Later the wife agreed that the husband had paid extra funds to assist with the children over and above his child support liabilities. She was not however aware as to how much extra money that was and stated that the moneys had been paid into “dollarmite accounts”[12] but she had not seen the statements for those accounts. Later the wife acknowledged that she was the trustee of the dollarmite accounts.[13]
[12] Transcript, page 27, lines 16-19.
[13] Ibid, line 31.
The wife also confirmed under cross examination that in the event that the relocation of the children was refused that neither she nor her new husband would be relocating to New Zealand without the children and each other.[14] Nevertheless, she indicated that her new husband had accepted the position on a provisional basis in October 2008.[15]
[14] Transcript, page 29, lines 11 and 13.
[15] Ibid, lines 23-31.
The wife was then asked about comments made by Trevor Holland at paragraph 49 of his report where he indicated that the wife “tends to undervalue the level of attachment and warmth” between the husband and the children. The wife agreed “up until this stage” she had undervalued the level of attachment.[16] The wife went on to disagree however with the suggestion that the children would benefit from spending overnight time with the husband during weekdays. She indicated that extra holiday time might be appropriate but that overnight time during the week was “far too disruptive”.[17] She also indicated that the children enjoyed travelling to school by bus and in the event that they were spending time with the husband during weekdays (and hence be driven to school by the husband on those occasions) they would miss the time that they are spending with their school friends.[18] The wife then went on to state that her reasons for not supporting the children spending weekday nights with the husband is that the children’s routine would be disrupted by such occurrences.[19] She also commented that she had been the “only carer they have known” and that she “would like it to stay that way.”[20] Later the wife conceded that the husband had not spent any time with the children on Father’s Day 2008. In response, the wife indicated that the husband had not been proactive in asking to spend time with the children on Father’s Day.[21] Later, the wife acknowledged that it was her move to Weatherboard with her new husband in October 2006 that necessitated her request that the children only spend alternate weekends with their father, rather than each week.[22]
[16] Transcript, page 30, lines 39-40.
[17] Transcript, page 31, line 6.
[18] Ibid, line 40.
[19] Transcript, page 22, lines 37-40.
[20] Transcript, page 34, lines 27 and 28.
[21] Transcript, page 38, line 11.
[22] Transcript, page 41, lines 5-27.
Later the wife was questioned about whether her opposition to the husband having time with the children during weeknights was related to the issue of child support. The wife rejected that suggestion.[23]
[23] Transcript, page 54, line 21.
The wife was not re-examined by her Counsel Ms Swart but was asked some questions by myself. Firstly, the wife indicated that in the event that she was able to relocate with the children to New Zealand, it was her intention to sell the home she currently owns with her husband and purchase a home in New Zealand.[24] Secondly, the wife confirmed that although she was currently on maternity leave, she had been working on a part-time basis prior to giving birth and had been earning in the vicinity of $20,000-$30,000 per anum.
[24] Transcript, page 58, lines 41-44.
Evidence of Mr R (applicant’s husband)
The wife’s new husband, Mr R, also gave evidence on behalf of the wife. In Mr R’s first affidavit, the witness confirmed at paragraph 3 that he had been employed as an [omitted] at [M] Limited at Ballarat for the past 13 years. He then states:
“I have reached the “ceiling” of my career within [M] Ballarat and have conditionally accepted the post of [omitted] Manager with [M] in [T], New Zealand. I have commenced training for the above mentioned position; however my employers are well aware that my continuation there is subject to the Court’s permission for my wife and the children to move to New Zealand.”
Mr R later indicates at paragraph 5 of his first affidavit, that he was approached in September 2008 with respect to taking up this managerial position. At paragraph 4, Mr R confirms that he was considering an opportunity to move to New Zealand in 2006 but he did not pursue it.
At paragraph 6 of his first affidavit Mr R states his “primary reasons” for the acceptance of the offer:
“(a) The position in New Zealand offers me significant advancement within the organisation, access to Management and greater promotional prospects within [M].
(b) It gives me greater job security (I feel more comfortable about the long term prospects of agriculture and in particular, food production in NZ given the prolonged and continuing drought in Ballarat).
(c) I may have the opportunity of becoming a Director at [M].
(d) The position offers considerably higher financial returns.”
Under questioning from Ms Swart for the wife, Mr R indicated that management opportunities within the [M]’s group for employees with an [omitted] background were rare[25] and the new position offers a “big step forward within the company.” [26] Mr R also confirmed that if they were successful in relocating to [T] he could not indicate how long they would remain there. In his view, some period of between three to five years would be needed before it may be appropriate to consider applying for a position back in Australia.[27] Under cross examination by
Mr Whitchurch for the husband, Mr R confirmed that his employer, [M]’s, is a Canadian owned company that has 60 processing facilities worldwide and currently employs over 20,000 people.[28][25] Transcript, page 61, lines 25-29.
[26] Ibid, line 24.
[27] Ibid, lines 61-67.
[28] Transcript, page 62, lines 39-42.
Mr Whitchurch asked specific questions about Mr R advancing his career while remaining in Ballart. In response, Mr R stated:
“As I said before, the potential for a promotion within the [omitted] department in Ballarat - and that's my specialty, [omitted] - is very, very small. My manager is the same age as me, the director above him is around 55 years of age. So he has indicated to us that he is going to be around for a five to 10-year period, so my five-year hope is that the director does retire, my manager in Ballarat moves up and I can move back into Ballarat.” [29]
[29] Transcript, page 64, lines 28-33.
Mr R went on to confirm that he has not been replaced in his current position in Ballarat and that he retains the option of moving to New Zealand or remaining in Ballarat.[30] Later, Mr R confirmed that he did not pursue the move to New Zealand in 2006 partly based on family law legal advice.[31] He was candid in stating that the “legal advice this time is that the law has changed and that it would seem more so in our favour.”[32] Mr R also acknowledged that his wife had been successful in reducing the time spent between the husband and the children to every alternate weekend, rather than every weekend, but explained that this was necessary:
“…because we as a small family unit, we wanted to spend some time with the kids on the weekend. We had little time with them on weekends or holidays at that stage because we were - yes, virtually packing them up, going to school and we weren't seen as the fun parent. So to give us some time to go and see relatives or go away for the weekend, that was the primary objective behind that change.”[33]
[30] Ibid, lines 40-41.
[31] Transcript, page 65, lines 3-8.
[32] Ibid, lines 9 and 10.
[33] Ibid, lines 22-27.
Later, Mr R was questioned about his future salary projections and he indicated that the potential for any rise in his current position as an [omitted] will be limited to around 3% per year.[34] Although the company has not provided any details in writing, the projections are that the potential rise should he become a [omitted] manager in [T] New Zealand would be around 8-10% per year.[35] Mr R also conceded that there was a possibility that he may end up spending the rest of his working life in [T].[36] Later, Mr R agreed that if he and the applicant wife are able to move to New Zealand, they propose selling their current property in Weatherboard and that they see this opportunity as way of making money in the short term.[37]
[34] Transcript, page 67, line 23.
[35] Ibid, line 24.
[36] Ibid, line 28.
[37] Transcript, page 69, lines 39 and 40.
Respondent husband’s evidence
The following documents were relied upon by the husband in respect of his response:
· The husband’s response filed 24 November 2008;
· Affidavit of the husband sworn 21 November 2008 and filed 24 November 2008 (“his first affidavit”);
· Affidavit of the husband sworn and filed 30 January 2009 (“his second affidavit”);
· Affidavit of Ms R (paternal grandmother) sworn and filed
30 January 2009;· Affidavit of Mr B (paternal grandfather) sworn and filed 30 January 2009;
· Affidavit of Ms M (the husband’s partner) sworn and filed
30 January 2009 (“Ms M’s first affidavit”);· Affidavit of Ms M (unsworn) e-filed 4 February 2009 (“Ms M’s second affidavit”);
· Notice Disputing Facts and authenticity of documents filed 6 February 2009; and
· Outline of Case Document filed 4 February 2009.
In his first affidavit, the husband asserts that it was the wife that initiated the separation and that as a consequence he was required to leave the matrimonial home and obtain rental accommodation. He states at paragraph 4(d) of his first affidavit that due to financial restraints he was unable to afford to rent anything other than a one bedroom unit following separation. He also asserts that in addition to his assessed child support he had been making payments of $20 a month for each of his two children into each of their respective bank accounts and that the wife is the trustee of the relevant accounts.
At paragraph 4(e) of his first affidavit he states that in the first 12 months following separation, the children spent each weekend with him, but that this weekly arrangement changed in mid 2006. The husband asserts his view that the wife reduced his weekend time following his decision not to agree to allow her proposed relocation to New Zealand in 2006.
In paragraph 4(k) of his first affidavit, the husband details his disappointment at not having and being able to spend any time with the children and at not having received any telephone call from the children on Father’s Day 2008. He also alleges that the wife has not provided any encouragement for him to attend school concerts and the like.
In paragraph 4(o) and (p) of his first affidavit the husband asserts his view that the proposed relocation would not be in the best interests of the two children. He elaborates on this further in paragraph 8 of his second affidavit where he states:
“I believe that it is in the best interests of my children that they remain living in the Ballarat area, where they have lived all of their lives, with parents, friends and extended family. There has been no suggestion that the children’s circumstances for the years since separation have deprived them financially, that their schooling or any other aspect of their care has been inadequate. My proposal in any form leaves the children in a secure, loving and stable environment, and serves the children’s interests.
Ms Ryder’s proposal serves her husband’s career advancement.”
Under cross examination by Counsel for the wife, Ms Swart, the husband reiterated his disappointment at having his weekend time with the children reduced in mid-2006. However he did state that he realised it would be important for the wife to spend weekend time with the children as well.[38] The husband also conceded that whilst he sought legal advice at the time he did not instruct solicitors to pursue any proceedings.[39] He also admitted that he did not push for any midweek time with the children until these current court proceedings.[40]
[38] Transcript, page 84, lines 36-38.
[39] Transcript, page 85, lines 3-10.
[40] Ibid, line 13.
Ms Swart then asked the husband a number of questions relating to his holiday time with the children from the commencement of separation to the most recent school holidays.
The husband’s recollection of the time he spent with the children in 2005 and 2006 was somewhat vague. According to the husband’s evidence, he spent time with the children during the June/July holidays in 2006, some extra days during the September school holidays in 2006, as well as a couple of days added during the long summer vacation in 2006/2007.[41] The husband also spent time with the children during the June/July and September school holidays in 2007.[42] The husband did not spend any time with the children during the long summer vacation in 2007/2008 because he stated he had no time off work. In 2008 the husband maintains he spent time with the children during the July school holidays only and the long summer vacation of 2008/2009 in the first week of January 2009. [43]
[41] Transcript, page 95.
[42] Transcript, page 97.
[43] Transcript, pages 99-100.
The husband was also questioned by Ms Swart about why he did not telephone the children on Father’s Day in 2008, he stated:
“I was waiting till the last minute, hoping that the children would contact me, because as far as I'm concerned, that's the proper rule of things.”
“So it had to come from the children. Is that what you're saying?”
“I would think so, yes. If it was their birthday, I don't expect them to ring me, I ring them.”
“If you had put a call in at the end of the day at Father's Day to the household, do you think you would have been able to speak to the children?”
“…More than likely, yes.”
“I suggest to you, Mr Roby, that it cuts both ways. Your complaint is that the mother didn't do enough to encourage the relationship, but you yourself didn't do enough to make that day special for you and the children, did you?”
“…I guess I could have done more in regard to Father's Day, sure…It wasn't my role to push it. The kids weren't under my care on that particular day.”[44]
[44] Transcript, page 110, lines 18-41.
The husband was also questioned in relation to Trevor Holland’s report, in particular paragraph 44, where he suggested that the husband has a “laissez-faire approach” with respect to the husband’s relationship with the children.[45] In his evidence the husband rejected this “tag” but admitted to being “fairly easygoing.”[46] Ms Swart also questioned the husband with respect to Mr Holland’s comment that the husband would be unlikely to “be organisationally capable of participating in a shared care arrangement on an equal basis.”[47] In response, the husband stated:
“I'm not sure what he's basing that on, but I would think I'm more than capable of entering into a shared arrangement at the moment.” [48]
[45] Transcript, pages 111-112.
[46] Transcript, page 112, line 12.
[47] Transcript, page 113, lines 28-33, quoting the Family Report at paragraph 45.
[48] Ibid, lines 33-34.
Later the husband stated:
“I've been thinking for quite some time in regard to having more contact and more access with my children, not just every second weekend or school holidays; possibly weeknights, that sort of thing, but it was never feasible due to my living conditions and my job, and being a single parent I guess. It just would not have been feasible…”[49]
[49] Transcript, page 114, lines 32-36.
Following re-examination by Mr Whitchurch, I asked the husband a question about whether, in the event that the shared care proposal was accepted, he would seek to change the children’s schools in any way. In response the husband indicated that he would not be proposing any change. [50]
[50] Transcript, page 125, lines 42-45 and page 126, lines 1 and 2.
The evidence of Ms M (respondent’s partner)
Ms M describes her relationship with the husband and her interactions with the children in her first affidavit sworn and filed on 30 January 2009. Not surprisingly, at paragraph 14 of her first affidavit she states:
“14. I believe in the best interest (sic) of [X] and [Y] and believe they should remain in Ballarat area with their loved ones. I fully support Mr Roby in the Orders he seeks in his Response to Initiating Application which provide for the children to live with him on a shared care basis should Ms Ryder and Mr R remain in Australia, or Orders that the children live with us should
Ms Ryder and Mr R decide to go to New Zealand.”In her second affidavit Ms M questions some of the assertions made by the wife’s new husband, Mr R, in his second affidavit. In paragraph 9 she makes an interesting observation:
“I refer to paragraph 16 of the Affidavit filed by Mr R on
13 January 2009in which he says that should his appointment as a [omitted] manager be confirmed he will earn about $76,000.00 New Zealand per year. At paragraph 15 he says he currently earns AUD $56,000.00. Annexure 2 to Mr R’s Affidavit indicates that he will have “a notional Australian salary of $65,835.00”. The difference between Mr R’s current salary of AUD $56,000.00 and the increased salary of AUD$65,835.00, equals a total difference of AUD$9,835.00.”
At paragraph 11 of her second affidavit Ms M, who is [employed in the Travel Industry], estimates that the travel time between [T] and Ballarat will be “at least 10.5 hours without unexpected delays…”
Under cross examination from Ms Swart, Ms M acknowledged that she regularly travels to New Zealand as a part of her employment and that it was possible for the husband to accompany her.[51] Nevertheless, Ms M indicated that she would not get to seem him very much because she would be working on these visits.[52]
[51] Transcript, page 154, line 21.
[52] Ibid, line 25.
Later Ms M was asked whether she had a negative view of the wife.[53] This was denied by Ms M on several occasions.
[53] Transcript, page 157, lines 23 and 24.
Evidence of Ms R (paternal grandmother)
The husband relied on an affidavit sworn and filed by his mother Ms R on 30 January 2009. Mrs R was not required for the purposes of cross examination. Ms R’s evidence not surprisingly favoured her son and she describes her and her son’s interactions with the children. At paragraphs 7 and 8 she states:
“7. I can see that Mr Roby cherishes his time with his children. I cannot imagine Mr Roby’s despair if the children were no longer permitted to be a close part of his life. Mr Roby has a great network of friends in Ballarat who also have families and [X] and [Y] enjoy regular interaction with them.
8. The children are a big part of my life and the children and I would miss each other terribly if they were to be relocated to New Zealand. I would be in a position to help Mr Roby care for the children if the Court was to order that the children were to live with him, and spend time with Ms Ryder and Mr R.”
Lastly, Mrs R states in paragraph 9:
“I believe that [X] and [Y] need to remain here in the Ballarat area in order to have access to their large and loving extended family network. I fear that [X] and [Y]’s relationships with their extended family on both sides would deteriorate if we were all unable to physically continue our close and involved relationship. For those reasons I support the Orders Mr Roby seeks.”
Evidence of Mr B (paternal grandfather)
Similarly the paternal grandfather’s affidavit is supportive of his son’s case. It would appear that the children in this case are the only grandchildren of Mr B and consequently it is not surprising that he states at paragraph 8:
“I would be really sad to lose the limited contact I have been able to maintain with the children if they were permitted to relocate to New Zealand. I fully support the Orders Mr Roby seeks, and I would be available to assist him significantly with the care of the children should the Court decide that they were to be placed more substantially in Mr Roby’s care so that Ms Ryder and Mr R have the opportunity to relocate to New Zealand if they wish to do so.”
The report writer’s evidence
As previously stated, the Family Consultant, Trevor Holland, was cross examined by respective Counsel for the wife and husband.
Ms Swart for the wife cross examined Mr Holland in relation to his concluding evaluations in paragraphs 55 through 57 of his report. In relation to paragraph 57 Ms Swart asked:
“What I want to ask you, Mr Holland, is it the case then in your opinion that while there would be an effect on the children's relationship with the father if they were to live in New Zealand, and that there might be some reduction in the quality and the closeness of that relationship that they have with their father, that their age and their capacities are such that with the travel that's proposed and the holiday time that's proposed, it could work for the children if they were in New Zealand. They would not lose the relationship with their father in a meaningful way?[54]
Mr Holland responded:
“What I'm intimating in terms of that is that there cognitive capacities are enough for them to hold the concept and the idea of their relationship with their father. So whilst the quality of the fortnightly or weekly interaction would not be there, the internal construct, the meaning that their father brings to their life, they are capable of holding that over time and space with regular contact as it was proposed, the four times a year. So they would not lose memory of their father, they would not lose memory of events, particularly if the mother was to refresh and to be proactive in reinforcing the relationship, and they would not lose the understanding of who their father is and the meaning of that in their life. They are old enough to hold those concepts cognitively. They have the capacity to hold those. If they were younger, their cognitive capacity to do that would be less.”[55]
[54] Transcript, pages 128, lines 44-55 and page 129, lines 1-6.
[55] Transcripts page 129, lines 6-18.
In relation to Mr Holland’s comment in paragraph 56 of his report that he had formed the opinion that the children’s relationships with the husband would be “significantly impacted by the relocation and may result in a diminution in the quality and intimacy of the relationships”, Ms Swart asked:
“When you say it may result in a diminution in the quality and the intimacy of the relationship that they have with him, it's not a foregone conclusion that it would result in a change in that way, is it?”[56]
Mr Holland responded:
“No, it's certainly not a foregone conclusion. The social science is rather imperfect, and some of the stuff is crystal ball gazing if you like. I couldn't evaluate the impact on that only to be able to say that there would be an impact. There would be many variables that would then be dependent upon the level of that impact. One of the most significant variables of course is the mother's capacity and willingness to do things like have photos up around of dad, promote telephone calls, promote information exchange.”[57]
[56] Ibid, lines 39-42.
[57] Ibid, lines 41-44 and Transcript, page 130, lines 1-4.
Later Ms Swart cross examined Mr Holland in relation to the situation if the wife’s application to relocate is refused, and whether the children should live with their father on an equal time (week about) basis:[58]
[58] Transcript, page 132.
“You've recommended against that in your report for a variety of reasons?”[59]
[59] Ibid, lines 37-38.
“Yes.”[60]
“The mother's proposal if she's still in Ballarat is that the children should continue to see their father from Friday afternoon till Sunday afternoon on alternate weekends, but that he should spend more time with them by taking half the school holidays...”[61]
“I understand Mr Roby's position to be now that if the children are in Ballarat and his Honour doesn't accede to his request for equal time week-about, that he'd be asking his Honour for something more than alternate weekends, and the something more might be a Thursday through to Monday morning, an extended weekend, plus holiday time. So we're all a little puzzled as to what you meant when you turned your mind to. "In these circumstances, it is recommended that Mr Roby's time with the children be substantially increased"? [referring to paragraph 49 of the Family Report][62]
“Yes. In my mind, I had, to use the vernacular, a nine-five split and half of all school holidays, which is five nights with the father and nine nights with the mother and half of all school holidays. That was in my thinking when I wrote the report, yes.”[63]
“Were you thinking a Wednesday through to a Monday morning at school or were you thinking a Thursday to Monday plus something in the other week?” [64]
“I would see how it's structured to be a matter of agreement between the parties if that could be achieved, and if not, then I guess with a view to looking at what the responsibilities and requirements are and to find a set of time that would accommodate and be reasonable for both, yes. They both live in the same town. They both live fairly relatively close to schools. Mr Roby apparently has bought a house and how has appropriate accommodation to house the children. The children appear to get on well with his new partner. These were the factors that I was considering, and on top of that, they have a warm rapport with him.” [65]
[60] Ibid, line 38.
[61] Ibid, lines 40-44.
[62] Transcript, page 133, lines 13-19.
[63] Ibid, lines 19-23.
[64] Ibid, lines 25 and 26.
[65] Ibid, lines 26-35.
“That's not a proposal that you actually explored with either of the parties, was it?”[66]
[66] Ibid, lines 37-38.
“I can't recollect having brought it up specifically, no...”[67]
“If it becomes a proposal that his Honour does need to consider, doesn't a five-nine type arrangement require many of the organisational and cooperative features that you say are absent in this family such to say that week-about wouldn't work?”[68]
“I don't believe so, and I don't believe so in terms of psychologically the children still identify themselves as living with their mother and having a single base. Psychologically I think the weight of organisation will run through the mother's home. The friendship groups and the general day-to-day organisational stuff will still probably go through the mother's home. The father will have to become increasingly more involved. He will have to develop sets of clothes and various other bits of furniture and so on and so forth and make a home for them, which he hasn't done. But think at a psychological level, what the nine-five split does is it still enables the child to locate themselves with a single base. They still would identify as having a single base.”[69]
[67] Ibid line 38.
[68] Transcript, page 133, lines 43-44, page 134, lines 1-2.
[69] Transcript, page 134, lines 2-12.
Later, Ms Swart asked about the different parenting styles of the parents. At one point she asked:
“…In a case where the mother is structured and organised in the way that the mother in this case is, would the five-nine work where it's not a structure that she's able to manage from the father's household?”[70]
“I think structure and routine are really important for children, particularly for this age group, but if I weigh that against the importance of the children having a more intimately substantial relationship with the other parent, then I weigh that as a greater consideration in the structure and routine. The other thing about structure and routine is that children are highly adaptable, and these children are operating within the normal adaptive functioning for both age groups, and I think that they will be able to accommodate some level of difference. It's never always going to be the same. So if I'm asked a question structure and routine versus a more intimate and connected relationship with the non-resident parent, then for me, the benefits of that outweigh the obvious benefits of providing sameness for children all the way through. It's incredibly difficult to have sameness all the way through when parents separate. In fact it's an ideal that probably can't be achieved.”[71]
[70] Ibid, lines 22-25.
[71] Ibid, lines 25-38.
Later Ms Swart suggested to Mr Holland that his report did not examine the effect on the wife’s household if her new husband is not able to take up his career opportunity and what impact this might have with the children. More specifically she asked:
“So what is the possible negative consequence if they don't go?...Did you turn your mind or could you turn your mind to on (sic) this family - what happens if they don't go in terms of their relationships with each other and the relationships with the father?”[72]
“That's a really important question, and it never came up in the context of this particular case for me. I guess the question is will Mrs Ryder’s parenting capacity be significantly impacted as a result of her not being able to go, and how might that look, and I guess what I would turn my mind to then is what is the psychological profile of Mrs Ryder? Is this a strong resilient woman? Is this a woman that is able to overcome things in adversity. She's certainly been an excellent mother to the children. She's certainly organised. She runs a good household. My impression - and this is a practice impression, not a complete clinical impression - is this is a strong, resilient and quite tough woman, and whilst I would imagine it will fundamentally alter the planning for her in terms of where she wants her family to go and be in X amount of time and certainly may have some impacts on her relationship with her partner, and I can't comment on that. Psychologically and emotionally this is a tough, resilient woman, and she's incredibly child-focused, and I believe that she will make the best of it. In fact if I had the time to go through my notes, I think it was a question that I did ask, and I think the response - and this is paraphrasing from Mrs Ryder - was that, "I will be devastated, but I will get on with it," and I think I did ask that question of Mrs Ryder actually, but I just didn't put it in my report. It's a key question.”[73]
[72] Transcript, page 135, lines 18-23.
[73] Ibid, lines 23-42.
In his cross examination of Mr Holland, Mr Whitchurch asked specifically about the likelihood of the wife influencing the children’s decision to support a move to relocate to New Zealand.[74] More specifically, Mr Whitchurch asked:
“...but all I'm asking you is did you explore with the mother and the stepfather the issue of them selling the idea of the children going to live with them in New Zealand?”[75]
“One of the things that I have tried to do particularly in relocation cases is to make some assessment I my mind about whether the children have been triangulated into the dispute, and whether hey are being unduly influenced towards wanting to go. In terms of measuring hat, your question about how it's introduced and the process that the parents hen run the children through in terms of engaging them around the idea, I came to the conclusion that the idea had been sold to the children in a very optimistic and positive way. Whether that was an overt attempt to influence he children around that or not, I could not say.”[76]
[74] Transcript, page 140.
[75] Ibid, lines 34-36.
[76] Ibid, lines 36-44.
Later, Mr Holland stated:
“The issue about undue influence for me would be then go to the character of Ms Ryder, and the conclusion that I came to was that I did not believe that she'd unduly influenced the children. I think I make some references - I'm not quite sure. In terms of when I'm talking about the mother's capacity to nurture a concept of the relationship with the father, I think I say in a couple of paragraphs that there was no evidence before me that the mother was overtly undermining or restraining the relationship between the children and the father, and I came to the conclusion that while she will have sold the concept of moving to New Zealand with the children very positively, I didn't detect that she was of the character that would undermine the relationship between the children and the father by so overtly selling it to the children. So one of the things that Ms Ryder spoke to me about in terms of the children is that she told me that she'd talked to the children about some of the difficulties, that it would be difficult at times, that they'd have to make new friends. So in terms of did I ask the question, did I examine that process forensically with specific questions, no, but I did come to the conclusion that Ms Ryder in her general overall interaction and parenting of the children was not of a mind to unduly influence the children in a negative way against Mr R (sic) [Mr Roby].”[77]
[77] Transcript, page 141, lines 19-37.
Later, Mr Holland was questioned by Mr Whitchurch with respect to the wife’s view that it would not be in the children’s best interests for them to spend mid-week time with the husband. Mr Holland responded:
“The impression that I gained was that Ms Ryder was happy for Mr Roby to have almost as much time as he wanted, providing it wasn't in structured school time. I gained the impression that she has a perception that only she can do that to the level of the children's needs. I didn't associate that with her restraining or undermining or not wanting the children to have a relationship with the father, and I think it goes back to the gender differences in terms of the way I think men and women parent, and the way women perceive men as parenting, and the way men perceive women as parenting. I think from Ms Ryder's point of view, I gained the impression that only she believes she can do that untasked structured stuff, and only she can provide that level of continuity during the task-oriented Monday to Friday week. I didn't then extrapolate or associate that out to her wanting to undermine or restraining Mr Roby's relationship with the children.”[78]
[78] Transcript, page 147, lines 41-44, and page 148, lines 1-10.
I then asked Mr Holland a number of questions. The first question related to whether Mr Holland was able to ascertain from the children whether they believed, in the event that they relocated to New Zealand, whether it would be for a long time, or for a short time.[79] Mr Holland responded:
“[X] I think was quite clear - even though she couldn't project what the implications of the move would be, she was quite clear that it was a move of a permanent nature, and she talked about developing friends. When I asked her how she would do that, she kind of had a plan. I asked her how long that might take her to do that. She said, "I think it would probably take me about 12 months to make the same sort of friends that I've made here." She's quite an intelligent insightful little lass, and she firmly had the concept that she was going on a permanent basis. Young [Y] was less clear, definitely less clear. I think he to some extent was a little bit bewildered by the process…one of the things that I try to weight and assess with the children is their capacity to actually be in the room with me. Some children don't lend themselves to interrogated forensic-type questions, and that's sometimes why questions don't get asked because you're trying to spare the child. I got the impression that he was less aware. Cognitively he has less of an idea about time frames, about permanency. He was aware that he was going to see his dad four or five times a year and it would all be okay. No, I have less confidence in saying about [Y] that he had full understanding of the permanency of the situation, but I have no doubt that [X] has been thinking about that, and understands the permanency of the situation.”[80]
[79] Transcript, page 149, lines 24-25.
[80] Transcript, page 149, lines 33-44 and page 150, lines 1-9.
My second question related to a comment [Y] made to Mr Holland, stated at paragraph 34 of his report, where Mr Holland indicates:
“[Y] reiterated his desire to stay with his mother and informed me he did not want to be separated from his mother and wanted to “grow up with my little sister and go to New Zealand”.”
My specific question related to the context of the comment made by [Y].[81] Mr Holland responded:
“The context of that particular comment came up when I was questioning him about spending extra time with his father, and I think it was at the end, he was tired, he was a bit frustrated, he'd become distracted, and I was trying to get a feel about what sort of time frames, how much he would spend with dad or not spend with dad if they stayed in Victoria, and it was said to me in terms of it was the way he finished. He wanted this to end. He wanted this man to stop questioning him, and I think I asked him one question too many and it came back to me, and that's how it came back. In fact that was the first time that Ms Ryder's new baby had been mentioned by either of the children, and I thought that was a little bit significant to me in terms of it was the first time I'd heard either of the children speak about their new sibling. So the context of that was, “Please go away. This is what I want. I don't want to answer your questions any more.””[82]
[81] Transcript, page 150, lines 16-20.
[82] Ibid, lines 20-32.
Lastly, I asked Mr Holland a question arising from paragraph 30 of his report where he states:
“30 [X] reports that she gets on well with Mr R and his extended family and described him as “kind and nice”, and reports a good relationship with Ms M. [X] reports that her mother and father get on “ok” and don’t fight with each other but don’t talk with each other like they used to.”[83]
I then asked Mr Holland if he could recall in what context that statement was made. Mr Holland responded:
“Again what I'd been talking about with [X] is what it used to be like when they - some of the questions I ask of children is, “How did you first find out that your mum and dad were separating,” because I want to know what their experience was at the point where they first understand it, because that gives me an idea about their adjustment process. So earlier in the interview we had talked about that first year of separation, and [X] remarked that they used to go across to and fro to dad's every week, and then her comment was, “and then it changed”. I said, "Yes, I know about the change. It changed to this, didn't it, [X]?" and she said, "Yes." Then later on towards the end when we were talking about it, her context of that was about - and she saw that as a good time when it was all a bit easier and there was less tension. In that early part when we were talking about the weekly stuff, we were talking about how mum and dad used to get on. She was saying to me that she used to talk a lot then and there was -you know, there'd be handovers and there'd be some chit-chat, and it was much more relaxed and much less tense. When she says that, she's talking about that time, that particular year post-separation when things were okay. I think there's somewhere in the reports where she talks about - and now they just talk at handover and it's not the same any more as it used to be when they first separated.”[84]
[83] Ibid, lines 35-39.
[84] Transcript, page 150, lines 40-44, page 151, lines 1-15.
Lastly, Mr Holland agreed that both parties might benefit from engaging in some sort of post separation parenting program and from the use of a communication book. [85]
[85] Transcript, page 151, lines 22 and 25.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609 contains an authoritative statement about how reports such as the one written by Mr Holland should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182 ; 11 ALR 657 ; [1976] FLC 90-098 at 75,447; In the Marriage of Harris Fam LN No 33 ; (1977) 29 FLR 285 ; [1977] FLC 90-276.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[86]
[86] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616.
In this matter the report writer’s evidence was tested and not found wanting in relation to his recommendations. In addition, as Mr Holland is the only independent and expert party in these proceedings, the Court must give the report and his oral evidence considerable weight.
The law
Parental responsibility
The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine whether the children should be permitted to relocate with the wife to [T] in New Zealand, or alternatively whether the children should remain in Australia and live in a shared care arrangement with the husband and the wife. In this respect, the Court notes that it is not the wife’s intention to relocate without the children, hence if the Court is of the view that a relocation does not promote the best interests of the children, then the wife has indicated that she will be remaining in Ballarat and consequently the issue of shared care, or significant and substantial time, is a live issue in these proceedings. That all having been said, there is no disagreement between the parties that they should have equal shared parental responsibility for the children.
Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration.
Section 61DA incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. There appears common ground between the parties in this matter that they should have equal shared parental responsibility for the children. In any event, the issue in this case is not the issue of parental responsibility but rather the time that [X] and [Y] would live with and/or spend time with and communicate with each of their parents and whether the children should be able to relocate with the wife to New Zealand.
The Court is also required under section 65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[87] or alternatively substantial and significant time,[88] with each of their parents. Before considering this further, the Court needs to consider the issue of the relocation.
[87] Section 65 DAA(1)
[88] Section 65 DAA(2)
Relocation
The Act does not contain any presumption against a relocation (parenting) order and nor is there any presumption that favours the parent that the children have been primarily residing with.[89] In other words, “relocation-cases” are not a special category of parenting orders. What the Act does is to provide the Court with a structured discretion to determine what order is appropriate in the circumstances.[90] The impact of the 2006 amendments to the Family Law Act 1975 in relation to relocation cases was described in the following terms by her Honour Boland J in the case of Morgan v Miles(2007) 38 Fam LR 275 (“Morgan v Miles”) at paragraphs 79-81:[91]
[89] Morgan v Miles (2007) 38 Fam LR 275 at 289 (per Boland J sitting as the Full Court).
[90] Ibid.
[91] Ibid, pp 290-291.
“[79] In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful (sic) weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
[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.
[81] What the legislation now requires is:
·consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
Counsel for the wife, Ms Swart, referred the Court to the case of Illidge & Norton [2008] FMCAfam 1255 where his Honour Federal Magistrate Neville provided a useful summary of the relevant principles which he had identified in his earlier decision of F v F (2007) 38 Fam LR 52.[92] Much of his Honour’s summary accords with the views expressed by her Honour Boland J in Morgan v Miles above. While his Honour acknowledges that “freedom of movement of parents is a significant priority” the outcome must be “to ensure that any parenting order is in the best interests of the child” and freedom of movement “takes a second place to the paramount interests of the child.”[93] While a parent seeking to relocate is not under an obligation to establish “compelling reasons” to support the move, any relocation must advance the welfare or best interests of the children.[94] As Neville FM observed, given the authority of the High Court’s decision in U v U (2002) 211 CLR 238:
“In determining a relocation case that involves changed circumstance, a Court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them…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.”[95]
[92] See F v F (2007) 38 Fam LR 52 at 56.
[93] Illidge & Norton [2008] FMCAfam 1255 at [13]; F v F (2007) 38 Fam LR 52 at 56; see also AMS v AIF (1999) 199 CLR 160.
[94] Ibid.
[95] Illidge & Norton [2008] FMCAfam 1255 at [13]; F v F (2007) 38 Fam LR 52 at 56.
In her closing address, Ms Swart also referred the Court to the decision of Godfrey v Sanders [2007] FamCA 102 where Kay J, sitting as the Full Court, suggested that the current legislation aspires to promote a meaningful relationship, not an optimal one, and that the diminution in the relationship no longer means that the relationship is not meaningful.[96] That having been said, I agree with the comments of Federal Magistrate Altobelli in cases such as Garvey v Eccles [2008] FMCAfam 1218 [97] and Silas & Berry (2009) FMCAfam 448 [98] that the question of a meaningful relationship must be considered in terms of “quality” of time rather than the quantity of time. Nevertheless, frequency of time spent between children and their parents remains a relevant factor, particularly when the children are pre-teen.
[96] [2007] FamCA 102 at [36].
[97] Garvey v Eccles [2008] FMCAfam 1218 at [38].
[98] Silas & Berry (2009) FMCAfam 448 at [46].
Counsel for the husband, Mr Whitchurch, referred the Court to the case of W v R (2006) 35 Fam LR 608.[99] Although a pre-shared parenting amendments case, it did involve a relocation request by a mother which was refused, despite the parties having lived in New Zealand before moving to Australia. In this case his Honour Carmody J undertook a detailed analysis of the Australian, New Zealand, English, Canadian and USA authorities before setting out the relevant principles and considerations in relocation cases.[100] In respect of the relevant legislation, and the Court’s approach, his Honour stated:
“This court is unapologetically pro-contact. The Family Law Act places heavy emphasis on the children’s right and need to have regular contact with both parents. It also views parental responsibility as a shared, if not joint, obligation. These considerations need to be given real and not merely token weight. They are not empty aspirations. Realistically, pre-teenage children cannot maintain a meaningful relationship with the absent parent and parents cannot adequately fulfil his or her duties and properly meet the responsibilities concerning the care, welfare and development of their children, without spending substantial periods of time with them on a regular basis. The mother’s proposal for less frequent but longer periods in the event of relocation is a poor substitute for the existing position for these particular children at this stage of their lives.”[101]
[99] Also reported as Walls v Robinson (2006) FLC 93-251.
[100] (2006) 35 Fam LR 608 at 617; (2006) FLC 93-251 at 80, 266-80, 267.
[101] (2006) 35 Fam LR 608 at 682; (2006) FLC 93-251 at 80,270.
Equal time or substantial and significant time
As previously discussed, the husband is seeking equal time in the event that the Court does not allow the relocation of the two children to New Zealand, and in the alternative, the husband appears to be seeking substantial and significant time, and certainly an increase in the current arrangements of alternate weekends from after school Friday to Sunday afternoon and half of the school holidays. This is opposed by the wife who favours that the children spend alternate weekends and half of the school holidays with the husband. Either outcome requires the Court to consider whether the children spending equal time (or substantial and significant time in lieu) with each of the parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances. This is not a case where equal time would be reasonably practicable in the event the children live in New Zealand.
Equal time parenting could only be considered in this case if the children remained in Ballarat, or within a reasonable distance of Ballarat. That having been said, the Court is still required to consider whether the children spending “substantial and significant time” with each of their parents is in their best interests regardless of whether they are residing with their mother in New Zealand or Ballarat.[102] Consequently, the Court must also consider section 65DAA(2)-(5) of the Act in the context of this case. In the event that a relocation is permitted, the children will need to travel between [T] and Ballarat (via Christchurch and Melbourne) for substantial periods during their school holidays. Moreover, the wife envisages that the children will communicate with the husband by telephone and internet technology, although she acknowledges with respect to the latter that they have not done so to date and nor does the husband currently have the necessary technology.[103]
[102] Section 65DAA(2).
[103] Transcript, page 74, lines 8-11.
It is note worthy that section 65DAA(3) stipulates that a child will only be taken to spend “substantial and significant time” with a parent 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.”
In considering the reasonable practicality issue, section 65DAA(5) requires the Court to have regard to:
“(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
If a relocation to New Zealand is permitted, then there is an issue as to whether the availability of the children to spend more, if not all, of their school holiday time, coupled with the availability and frequency of plane travel between Christchurch and Melbourne plus telephone and internet technology, makes an order for “substantial and significant time” “reasonably practicable” in this case, whether technically or in substance. In light of section 65DAA(3), an order that the children would only spend all (or more likely some) of their school holiday time with the husband would not be considered “substantial and significant time.” That having been said, it is arguable that the active use of internet technology might assist to enable the children to engage with the husband in their daily routine, particularly in regards to school-based activities. Of course, the parties have, to date, no history of using such technology, and moreover, the wife is somewhat reluctant for the children’s weekday routine to be disrupted.[104] Despite judicial acknowledgement that virtual means of communication can assist in maintaining relationships,[105] “virtual visitation” is not currently a feature in these children’s lives and is certainly “no substitute for face-to-face contact.”[106] In this context, I agree with the comments made by his Honour Altobelli FM in the case of Garvey v Eccles [2008] FMCAfam 1218 where he states:
“There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation?...I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.”[107]
Consequently, if the Court decides that a relocation is in the best interests of [X] and [Y], it is questionable whether they would be able to spend “substantial and significant” time with their father.
[104] Transcript, page 46, line 39.
[105] See for example M v S (2006) 37 Fam LR 32 at 48 (per Dessau J).
[106] Ibid.
[107] [2008] FMCAfam 1218 at [38].
Obviously, “equal time” parenting or “substantial and significant” time are reasonably practicable if the children remain in the Ballarat area. Of course, these are issues which the Court must consider; they are not mandatory outcomes. As stated previously, it is the examination of the section 60CC factors in light of the evidence that will determine the best interests of the children in this case. The Court can then apply “those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”[108]
[108] Morgan v Miles (2007) 38 Fam LR 275 at 291 (per Boland J sitting as the Full Court).
Determining the best interests of the child
The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
The Court will now turn to consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case. The primary considerations are set out in section 60CC(2).
The benefit to the child of having a meaningful relationship with both parents
It is clear from the evidence of the parties that both accept the need for their children [X] and [Y] to have a meaningful relationship with the other parent. While the Court acknowledges that “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”,[109] this first primary consideration clearly aligns with the right of children to have the benefit of both their parents having a meaningful relationship in their life to the maximum extent consistent with the best interests of the child.[110] Both the husband and the wife in this case appear capable and loving parents. They both have a different and important contribution to make to their children’s future development. In this regard, the Court notes that Mr Holland formed the view that the children’s relationship with the husband “would be significantly impacted by the relocation and may result in a diminution of the quality and intimacy of the relationships.”[111] While Mr Holland also stated that the children’s cognitive capacity would ameliorate this impact to some extent, he is clearly echoing some concern in his evaluation about the children’s relationship with the husband suffering should the relocation be permitted.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
[109]Godfrey v Sanders [2007] FamCA 102 at [36] (per Kay J sitting as the Full Court).
[110] Section 60B(2)(a) of the Act, also see Garvey v Eccles [2008] FMCAfam 1218 at [51] (per Altobelli FM).
[111] Family Report at paragraph 56.
There are no issues of abuse or harm to the children or family violence in this case.
The additional considerations are set out in section 60CC(3).
The child’s expressed views and the weight those views should be given
It is quite clear from Mr Holland’s interviews with the children that they expressed their wish to relocate with their mother to New Zealand.[112] This is particularly so of the elder child [X], who found “the prospect of living in another country exciting and special.”[113]
[112] Ibid, paragraphs 27 and 34.
[113] Ibid, paragraph 28.
Mr Holland was also confident that the children had not been unduly influenced by the wife in their support of the relocation.[114] Nevertheless, he conceded under cross examination that it was likely the wife had presented the relocation to the children in a “positive and glowing way.”[115] Mr Holland also stated that, in his view, [X] understood the “permanency of the situation.”[116] Mr Holland was unable to say whether [Y] appreciated that the relocation, if permitted, might be permanent.[117] [Y] did appear to indicate that he wanted to remain with both his siblings.[118]As to the question of what weight should be given to the views expressed by [X] and [Y], the Court needs to apply some caution given that the children are currently aged only 10 and 7 respectively. That having been said, the Court is satisfied that they are clearly expressing a desire to have their mother remain their primary caregiver.
The nature of the relationships between the child and each parent and other people important in their lives
[114] Transcript, page 141, lines 21-22.
[115] Ibid, line 18.
[116] Transcript, page 150, lines 8-9.
[117] Transcript, page 149, lines 40-41.
[118] Family Report at paragraph 34.
There is no doubt that both the wife and the husband love their children. It is also clear that the children have a good relationship with their extended family who mainly reside in the Ballarat area. In the long term, the proposed relocation to New Zealand would place the strength of these relationships at some risk. This was certainly the view of Mr Holland in his report and in his oral evidence.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the children and the other parent
It is certainly noteworthy that the wife and the husband have been able, to date, to parent their children post separation (and post re-partnering), without the need for parenting orders. Nevertheless, it is also clear that the parties have some difficulties in communicating with each other about parenting matters. This is no doubt due, at least in part, to their differing parenting styles which Mr Holland detailed in his report. The wife presents as a highly organised parent in contrast to the husband’s “easy-going” approach.[119] The wife’s insistence of the children maintaining a structured routine is understandable but her reluctance to involve the husband in the children’s weeknight routines raises a question mark about her ability to facilitate a close and encouraging relationship between the children and the husband, particularly if the children are living with her, her new husband and their child in New Zealand. Clearly it is the responsibility of parents to ensure that (or at least facilitate) their children to make an effort to contact the other parent on special days, such as that parent’s birthday, or Mother’s/Father’s Day. The Court disagrees with the wife’s assessment that the decision to contact the other parent in such circumstances is a “choice for the children.”[120] This is particularly so when children are younger and more likely to abide by a parent’s positive instruction.
Any changes in the child’s circumstances including the likely effect on the children of any separation
[119] Transcript, page 112, line 12.
[120] Transcript, page 38, lines 21-22.
Clearly the proposals of both the mother and the father will result in changes to [X] and [Y]’s existing circumstances. Indeed the children’s relationship with both their parents are about to enter a new phase. If the relocation were permitted, the children would not be separated from their mother, their step-father and their new sister [Z]. However, they would be separated from their father, their step-mother and their extended family in Ballarat. If the children were living in an equal time arrangement it would be of some concern that the children would be separated from their sister [Z]. Of course the Court cannot ignore the possibility that the husband may have further children in the future.
The practical difficulty and expense of the child spending time with both parents
This is an issue in this case in the event that the relocation of the children to New Zealand is permitted. The most likely expenses should the relocation proceed will be the cost of airfares for flights between Christchurch and Melbourne (and the travel between the respective residences and these major airports). Given that the wife proposes that the parties should share the travel costs, the financial circumstances of both parties need to be considered. The wife’s new husband has also indicated this willingness to financially assist in the travel costs.[121] The wife is currently on maternity leave but indicated to the Court her intention to return to some casual work in the future. The husband is currently employed as a [omitted] Department Manager for [S] and pays the wife child support (as assessed). While the cost of trans-Tasman travel is not cost-prohibitive, the travel expenses will be significant into the years ahead. Despite Mr R’s generous offer to assist, it is likely that such costs will negate some of the financial benefits that he was hoping to achieve by making the move to New Zealand. Moreover, the husband’s contributions to the travel costs are likely to impact upon the amount of child support received by the wife. If these travel costs become a financial burden then there is a risk that the frequency of the travel proposed may have to be reconsidered.
The capacity of each parent to provide for the child’s needs/ the attitude each parent has demonstrated to the responsibilities of being a parent
[121] Affidavit of Mr R sworn 12 January 2009 and filed 13 January 2009, paragraph 8.
The Court is satisfied that both the wife and the husband have the capacity to provide for [X] and [Y]’s needs and have generally demonstrated a positive attitude to the responsibilities of being a parent. That having been said, there is some need to improve the level of communication between the parties in relation to parenting matters.
The maturity, sex, lifestyle and background of the child and the parents
There are no specific matters here that assist the Court.
Any family violence (or any family violence order) involving the child or a member of the child’s family
There is no issue of family violence or any family violence order between the parties.
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
While the Court proposes that any parenting order that it makes be subject to any agreement between the wife and the husband that benefits both [X] and [Y], it is clear that despite being able to parent without an order to date, the parties will now require specific parenting orders. It is also clear to the Court that both parties will benefit from a post separation parenting course. This should assist them to deal with the inevitable parenting problems that will arise in the near future.
Any other fact or circumstance the Court thinks is relevant
There are no additional issues which the Court thinks are relevant.
The Court is also required under section 60CC(4) to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent…” In this case both the wife and the husband have been actively involved in their children’s lives and, despite their current disagreement over the children’s proposed relocation, the evidence suggests that they have been able to make the long term decisions necessary in relation to their children.
Conclusion
The Court has no doubt that the husband and the wife should have equal shared parental responsibility for the long term care, welfare and development of the two children. This was, in any event, not an issue in dispute between the parties. The Court is also satisfied that the children’s best interests would not be served by allowing them to relocate to New Zealand as proposed by the wife. The Court is satisfied that their best interests would be served by them living with the wife in the Ballarat region.
The Court does not believe that the children’s best interests would be served by the children living in a shared care arrangement with the wife and the husband. The Court does, however, believe that the children’s best interests would be served by them spending “substantial and significant” time with their father. As to the frequency, the Court is satisfied that the children should ultimately spend five nights per fortnight during school terms in their father’s care and the balance with their mother. This change should be introduced gradually. As from the commencement of the third school term 2009, the children should spend time with the husband from the end of school Friday until the commencement of school Monday each alternate week. As from the commencement of the fourth school term 2009, the children should spend time with the husband from after school Thursday to the commencement of school Monday each alternate week. As from the first school term 2010, the children should spend time with the husband from after school Thursday to before school Tuesday each alternate week.
In addition, the children should spend at least one half of all school holiday periods with the husband, and in default of any agreement to the contrary, the husband should have the second half of all school holiday periods, commencing in 2009 and alternate years thereafter and the first half of all school holiday periods commencing in 2010 and alternate years thereafter.
Anytime spent by the children with the husband during school holiday periods would require the husband to be in substantial attendance. The husband will be required to provide the wife with at least thirty (30) days notice of his intention to have the children spend time with him during the designated school holiday periods.
In addition, the children should spend time with their father during special days, such as the children’s birthdays, the husband’s birthday and Father’s Day and in default of any agreement to the contrary this should be for a period of at least three hours on school days and at least six hours on non-school days. Similarly, in default of any agreement to the contrary, the children should be spending time with their mother on similar special days for the same frequency in the event that those days fell within a period in which the children would be otherwise spending time with their father.
There also needs to be appropriate orders with respect to the children being able to telephone their father at least twice weekly (when they are not otherwise spending time with him) by telephone and/or internet technology, if used by the parties.
The orders should also include obligations on both parties to keep the other informed about [X] and [Y]’s activities, health, education and development (preferably through the use of communication book or electronic equivalent) and not to denigrate each other in the children’s presence.
The orders should include a requirement that both parties participate in an appropriate post separation parenting course.
Lastly, the orders should include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [X] and [Y]’s long term care, welfare and development.
Counsel will now have the opportunity to present precise terms of the orders sought by the parties in order to give effect to the terms of this judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 23 June 2009
Corrections
1. All instances of the paternal grandmother’s name appearing as “Ms Roby” were amended to “Ms R”.
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