S & B - [2006] FMCAfam 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & B

[2006] FMCAfam 42

FAMILY LAW – Residence – relocation – Rice and Asplund – children’s best interests – desirability of regular involvement of both parents in children’s lives – children’s wishes – children’s relationships – effect of separation from either parent – practical difficulties – parenting capacity – protection from harm – attitude to parental responsibilities – application dismissed.

Family Law Act 1975 (Cth), ss.60B(2), 65E, 68F(2)

AMS v AIF (1999) 199 CLR 160
B and B: Family Law Reform Act1995 (1997) FLC 92-755
Bolitho and Cohen (2005) FLC 93-224
D and Y (1995) FLC 92-581
King and Finneran (2001) FLC 93-079
Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215

Family Law Council, Relocation, Discussion Paper (February 2006)

Applicant:

AJS

Respondent:

GJB

File Number:

CAM 358 of 2004

Judgment of:

Mowbray FM

Hearing dates:

13 & 14 October and 10 November 2005

Delivered at:

Canberra

Delivered on:

20 June 2006

REPRESENTATION

Counsel for the Applicant:

Mr G Brzostowski S C

Solicitors for the Applicant:

Crowley Clifford Simpson

Counsel for the Respondent:

Ms A Tonkin

Solicitors for the Respondent:

KJB Law

ORDERS

That the mother’s application of 6 April 2005 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 358 of 2004

AJS

Applicant

And

GJB

Respondent

REASONS FOR JUDGMENT

In her application of 6 April 2005 the mother seeks to discharge the existing consent shared care orders made on 2 March 2004 in the Family Court of Australia and be permitted to relocate with the children to NC. The father opposes that application.

Background

The mother was born in August 1959 and is 46.
The father was born in June 1956 and is 50.
The parties married in November 1990 and finally separated in April 2001. They were divorced in May 2004.
There are two children of the marriage, EMB born June 1992 aged 14 and SJB born February 1996 aged 10.
The parties entered into consent orders in the Family Court on 2 March 2004 for property and parenting matters. The children’s orders provided for a week about shared care arrangement.

The applicable law

Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to section 65E which provides that in determining the outcome the best interests of the children is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in section 60B(2) have particular relevance in these proceedings. They are:
a. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b. children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c. parents share duties and responsibilities concerning the care, welfare and development of their children; and
d. parents should agree about the future parenting of their children.
These provisions emphasise the desirability of regular involvement of both parents in their children’s lives. The involvement and responsibilities ideally should be shared. The contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In a case where a party seeks to vary existing orders, it is generally appropriate to have regard to the threshold test and apply the principles derived from Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215. In that case the Full Court of the Family Court held that:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied … that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The decision in Rice and Asplund has been subsequently followed in a series of cases (for example, D and Y (1995) FLC 92-581; King and Finneran (2001) FLC 93-079). In King and Finneran, Collier J sitting on appeal explained the way in which the Court should apply the test:
44.To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
49.…this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.…The changed or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
I deal with the question whether Rice and Asplund applies in the current matter later. If it does and this threshold is met, or if it does not apply, the Court must then determine the issues in the ordinary way. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Having reviewed various authorities on relocation, especially since the 1999 High Court decision in AMS v AIF (1999) 199 CLR 160, the Family Law Council summarised the relevant principles for relocation cases at [3.35] of its February 2006 Discussion Paper on Relocation:
·Relocation cases are not a special category of cases. The Family Law Act does not specifically mention ‘relocation’ and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation”.
·The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.
Section 68F(2) sets out matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, contact and other parenting arrangements. Paragraph (l) permits the Court to take into account any other fact or circumstance that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed (see B and B: Family Law Reform Act1995).

The evidence

Evidence for the mother – AJS

Understandably the mother, AJS, wishes to relocate to NC on the far south coast of NSW to be with her current husband. However she made it clear at the hearing that she will not relocate without the children should her application be dismissed, despite the difficulties of living out of two households interstate. The mother says however that the children have both expressed wishes to relocate to NC, strongly so in the case of SJB.
The parties separated in April 2001 and agreed in October 2001 to share in the care of the children on a week about basis. That arrangement was formalised by way of consent orders filed in the Family Court in March 2004. The mother however contends that she was not comfortable with a shared care arrangement when she agreed to it in October 2001. She felt it was the only option available to her. She feared the father would seriously harm her or himself. She agreed to a shared care arrangement to avoid provoking the father. She did not believe that the shared care arrangement was in the children’s best interests.
The mother pointed to the father’s history of depression, alcohol abuse and gambling addiction. She also referred to two incidents of violence prior to the October 2001 agreement, at a credit union premises in August 2000 and at her home in April 2001, the latter leading to a guilty plea for assault. She was comforted by the evidence of the father’s new partner that none of these are of current concern.
The mother and her husband, GS, married in April 2005. They had first met in November 2000 and commenced an intimate relationship soon after. They jointly purchased a home at NC in November 2004. Her husband moved into the property shortly after the purchase, having moved to the south coast in January 2004 to take up new employment. The husband’s other two children from a previous relationship, T aged 17 and A aged 16 also share the household.
The mother described the home as a four bedroom home on 39 acres located in NC. The house is being substantially renovated and extended. It has farm equipment and machinery and the children enjoy outdoor activities such as motorbike and horse riding. It is close to the beach.
The mother has continued to reside in Canberra with her children for the school weeks of her shared care and takes them to NC for her weekend with them. During the school holidays she and the children spend most of her residence time at NC. The mother lives at NC when the children are with their father.
The children have developed close relationships with GS’s family and relatives and enjoy the time they spend with them.
The mother says that the children were very excited by the decision to purchase the NC property. Before she and GS formed a relationship it had been a dream of hers to live on a farm. She had had the goal of relocating to a farm since about 2001. Her search for a suitable property led her to the south coast of NSW as GS’s children lived with him and for family and employment reasons he was unable to leave the area.
However, despite the purchase in November 2004 the mother decided that she would not immediately relocate to NC. About this time the children expressed views about relocating after her marriage to GS. In about October 2004 EMB said:
I have a really good idea as to what can happen. I will stay with Dad in Canberra for a year. I’d like to go to X High School for 12 months and after that move to NC. SJB can live with you at NC.
The mother says that the children discussed in great detail their living arrangements when they were told in about October 2004 of her intention to marry GS. SJB said that she had told her school friends that she was moving and that in the meantime she wanted to spend less time with the father. SJB claimed to the mother that she was scared to talk to her father about it because he would get mad with her. Discussions did take place between the father and the children but the father said that he did not agree to the children relocating with their mother. The mother also claimed that over the 2005 New Year period SJB said to her that her New Year wish was to live with the mother at NC.
The mother has made enquiries with local schools and both children visited those schools. The mother says that she did this to give the children an opportunity to form their own opinions about whether the schools appealed to them. It would also make transition easier.
The mother acknowledged that EMB has had a number of periods of anxiety attacks. In 2003 in year 5 she experienced a bullying problem. In 2005 she again experienced severe anxiety when she commenced high school. However, the issues have settled and she is now doing well at school. Further anxiety issues could be anticipated with a move to a new school.
The mother is adamant that the 2003 attacks had nothing to do with her telling EMB that she planned to move to the coast. She did not suggest a move to EMB until October 2004 and denies the father’s assertion that it was a year earlier.
The mother has concerns about the children’s living arrangement whilst they are in the father’s care. The mother contends that the children have complained to her about them. Some of the initial concerns involved the father’s then housemate and friend CM who left the home in November 2004. The father had purchased a home in Canberra in the ACT with CM in June 2004. The father concedes that the children found it difficult while CM shared the home.
The mother says that there was an incident of drunkenness and violence in August 2003 caused by an ex-girlfriend of the father. There has however been none since then. EMB had also taken on the responsibility of keeping an eye on how much the father drinks.
The mother alleges that the children do not have good relationships with their paternal grandparents and the father’s new partner, VL. The mother claimed that over the September/October 2004 school holiday period the children spent the first week of the holidays with the father and his family in Coffs Harbour. She says that the children said that they did not do much there. She says that when the children are in her care with her and her husband at NC the children say to her that they always have a great time.
The mother says that the children were distressed and upset by the father’s decision to not take them on a New Zealand holiday with him, VL and S, VL’s daughter from a previous relationship.
The mother contends that since separation the father has not taken an active role in caring for the children. The father does not buy the children good quality clothing and shoes, he does not pay on time for school activities and other social outings and he has not ensured that EMB attends all of her orthodontic appointments. Under cross examination the mother admitted that the father had only missed two such appointments and she one. She says that she is concerned for the children’s general safety as they are required to walk home on their own after school and are left alone when they get home.
The mother agreed however that the children have lovely friends, are well established in their current environment and are doing well at school. EMB is a keen netball player in a local team and SJB has represented her school in skiing.
The mother conducts her own management consultancy business under the name XX. In 2004 she also commenced a new business with two business partners through the company entitled XXXX. Her business partners reside in Canberra and she expects that once she establishes a firm client base she will be able to reduce her involvement to a maximum of 20 hours per week with most work being conducted from NC and some occasional return travel to Canberra. She may only need to be in Canberra on about five occasions a year, and not over night. In 2004 she commenced a TAFE course in property valuation which she hopes to complete via distance education in 2 years. GS is a site manager with YY at Y near NC.
GS, the mother’s husband, and MW, GS’s sister, testified to the strength of the children’s relationships with GS and his extended family.

Evidence for the father – GJB

In his minutes of proposed orders the father sought residence of the children. However, he was adamant in oral evidence that his preferred position was for the shared care arrangement to continue. The only reason he had proposed residence was because he thought the mother intended to move to the south coast regardless of the outcome of this matter.
The father gave evidence of his living arrangements after separation, including rental housing in Canberra, the commencement of shared care in October 2001, and his older daughter H’s accommodation.
In April 2004 after the March 2004 consent orders the father agreed to purchase a home with his friend CM. On 6 June 2004 he moved into the property in Canberra. CM lived there from time to time but left in February 2005.
In September 2004 the father commenced a relationship with his current partner, VL. She has lived with the father and the children since November 2004. She has a 17 year old daughter, S from her previous marriage who is completing her final years of high school. The father says that he hopes his partnership with VL will be a long-term one, although no decision had been made about marriage. She has established a close, caring and supportive relationship with the children.
The father has discussed with VL the possibility of relocating to the north coast of NSW where he has some business interests and where his family lives. It is an attractive option, but not until S finishes school at the end of 2006. Whether he continues to live in Canberra depends on the outcome of this case.
The father was attracted to the Canberra home in 2004 because it is close to the children’s schools. It is a four bedroom home and both children each have their own room. The fourth bedroom is used by H and S when they visit. The children’s schools are in close proximity and they have a large circle of friends. The father and/or VL are home soon after the girls return from school.
The father’s evidence focused strongly on the children’s schooling and their interests and extra curricular activities. In particular he has involved himself in the children’s school year learning journey programs, parent and teacher interviews and helped at a sausage sizzle to raise money.
As does the mother, the father recognises that EMB is passionate about netball. She plays at the X Netball Club and has recently been selected as an age representative for a special program. However EMB has been absent from several of her netball events due to her weekend trips away to NC.

SJB too plays sport. She is interested in skiing and represented the school in the Inter Schools Competition in 2005. She enjoys the school’s ten pin bowling program and swimming.
The father has trained the children in motor bike riding. The father says that the children enjoy playing computer games, emailing their friends and watching DVDs. They involve themselves in craft and drawing with the father and VL and their friends. EMB enjoys singing and often rewrites songs with her friends. Both children also enjoy family activities such as bird watching, walking the family dog and bike riding. The children have friends that live nearby and at times sleep over at the father’s home. The father and the children have taken family holidays but the father has reduced holidays because of the increase in travel between Canberra and NC.
The father says that he encourages the relationship between the children and GS’s family. He acknowledges that the children enjoy their time at NC and accepts that they get on well with GS’s family. He agrees that there are appealing attractions for the children at NC.
In about October 2004 SJB expressed her desire to move to the coast with her mother, although the father noted she was only eight at the time. EMB would prefer the continuation of shared care. The father acknowledges that EMB does not wish to hurt either parent.
The father agrees that he had serious alcoholic and gambling problems during the parties’ relationship. However these were issues that occurred during the relationship and prior to the shared care arrangements commencing in 2001. The father admits that he has suffered from depression and that this caused significant distress to the mother and the children when the parties were married. The father takes prescribed medication and has adopted strategies such as outdoor activities and lifestyle changes to minimise his depression and improve his relationships with other people.
The father attributes the mother having told EMB in October 2003 about moving to the coast as one of the reasons for EMB’s anxiety problems in 2003. Bullying was another reason as was the change in school in 2005. EMB had now overcome this difficulty and is doing well.
The father works as a casual teacher on short-term contracts as well as undertaking consulting and training assignments for government departments and a private client. He has had continuous employment with repeat clients since settling back in Canberra in 2001. He doubted that he would be able to obtain similar employment were he to relocate to the south coast. VL is a teacher and would have less difficulty finding work there.
VL gave evidence on her relationships with the children and the children’s with their father. She gets on well with EMB and has a closer relationship with SJB who is younger and by nature very affectionate. She also referred to EMB’s anxiety problems at the beginning of the 2005 school year.
According to VL the father’s alcohol consumption, gambling and depression are things of the past. She has not experienced them during her time with the father. Although VL has not discussed the continuation of shared care with the father, she was not aware that the mother had recently indicated that if she was not able to relocate with the girls she would continue to reside in Canberra.
Dr Stan Doumani, the father’s general practitioner, said that at October 2005 the only issue of significance for the father health wise is depression. He is taking a relatively small dose of anti-depressant which is controlling his depression “in excellent fashion”. In fact he did not detect any depression on that last visit. He had not suffered any major depressive disorder. The father’s liver function tests in October 2004 and April 2001 showed no signs of alcohol abuse and there was no alcohol related entry in his notes later than October 2000.

The family report

Mr Kevin Percival, a child and family counsellor, prepared a family report. He interviewed the parties, their new partners and EMB and SJB. As Mr Percival’s report of 6 October 2005 is of some significance, I reproduce below those segments on the children and their relationships and Mr Percival’s assessment and recommendations:
CHILDREN AND THEIR RELATIONSHIPS
21.The children were each interviewed separately. Both siblings presented with a spontaneous manner and each articulated their thinking clearly and succinctly. While SJB was precise in stating her preference to shift to NC EMB was prepared to reveal her ambivalence which reflected the careful consideration she is giving to the implications of remaining in Canberra or relocating to NC.
22.The children are under no misapprehension regarding how each of their parents feel about the other or how they view the other parent’s household.
EMB
23.The relocation dispute between her parents poses a considerable dilemma for EMB who stated that she enjoys her lifestyle in Canberra but imagines that there are, what she termed “great opportunities” to be gained by living in NC. She foresees these opportunities largely in terms of being able to attend a high school where the curriculum has a strong marine orientation and beach related activities. As her mother’s house is apparently being renovated the prospect of having a large bedroom to herself also holds appeal for EMB.
24.EMB articulated her thoughts and feelings clearly throughout her discussion and expressed a high degree of ambivalence concerning the issue of relocation. Significance should be placed on EMBs ambivalence as it is an important factor in this matter. She summed up her feelings with the statement, “If I had to make the decision I wouldn’t be abler to make it!” She said that “both places hold attractions” for her.
25.EMB’s quandary is exacerbated by the realisation that if she opts in favour of a move to NC and throws her lot in with mother and relocates south it is EMB’s perception that more likely than not her father will shift from Canberra to his mid north coast property. She is concerned that if this circumstance eventuated she would probably see her father significantly less often than if the status quo remained in place or if her father remained in the ACT (even if she moved to NC). On the other hand she indicated how aware she is that her mother wants to move to NC “really badly” and she does not want to hamper her mother’s desire to relocate and not have to drive the distance between NC and Canberra so often. I was struck by the very strong sense EMB has of her mother’s wish to relocate and that she may stand in the way of this yearning. She is conscious however that her mother would not move if it meant that she and SJB could not move with her She said, “Mum would never leave us” in Canberra.
26.EMB is mindful that her parents are each vying for a commitment from her in favour of their respective positions and places. She referred to “some bribing going on” on the part of each parent in order to sway her thinking on the matter.
27.EMB’s primary misgiving concerning a shift to NC is her apprehension about changing schools given she experienced a degree of anxiety when moving from primary school to high school. She is aware of the difficulties she encountered during that particular transition although she is optimistic that if she changed schools at the commencement of the 2006 school year the change in schooling arrangements would not be as pronounced.
28.While she left little doubt that she has a close relationship with her mother EMB presented as having a closer relationship with her father than that which her mother depicted. When talking about her father and the extent to which she would miss him if she moved to NC EMB quite spontaneously declared, “Dad’s great!” When asked if she would miss him if she moved EMB replied instantly, “O god yeah!”
29.EMB’s discussion echoed a significant amount of her parents’ thinking which suggests that her thinking is not without the influence of both her mother’s and her father’s households. Her ambivalent feelings are definitely her own however and they were clearly and regularly articulated throughout her discussion.
SJB
30.Of the two siblings SJB is the less ambivalent concerning her wish to relocate although she is somewhat singular in her thinking with a focus and imagination on what life living on a rural property will probably afford her. She is very attracted by the appeal of being able to access animals and outdoor activities which she contrasts with some of the limitations imposed on her by her suburban Canberra situation.
31.Early in her discussion SJB declared that she would “prefer to live at the farm. It’s a better life for me.” It appears that when she weighs up the pros and cons of living in Canberra or at NC SJB makes her comparisons in terms of ‘city’ versus ‘country’ lifestyle. Those activities with the ‘country’ experience seem to outweigh disadvantages associated with not having contact with her father as frequently as she does at the present time. While she recognizes that she would “feel sad” because she “wouldn’t see dad as much” if she moved to NC SJB said she would “feel happy if I get to go.”
ASSESSMENT
32.The parents match each other in their ability to criticise each other as part of their respective rationalisation for why the children should or should not be allowed to relocate. Regrettably the children have an acute measure of how adept their parents are in castigating each other.
33.It is difficult to envisage how the best interests of each of the children will be served through their relocation to NC. There is no clear benefit that will automatically result simply because they are shifting from one place to another. While the mother contends that there are many benefits for the children in relocating there she has not accounted for the loss associated with their shift away from their father to whom both children report they are strongly attached.
34.If she was successful in her application the mother proposes school holiday contact and delivery by her of the children to the father at Cooma (NSW) for contact with him each third weekend. Notwithstanding the mother’s offer the significant physical separation between the father and the children, by contrast with the residence arrangements that have been in place to date, will add considerably to the difficulty of the father maintaining an effective relationship with his children.
35.I am unable to doubt the mother’s sincerity in wishing to relocate the children as she has a substantial interest in relocating. However it seems that the mother’s needs may be met at the expense of some of the children’s needs. Her application is in the wake of her choice to live in NCrather than a decision to move because to remain in Canberra was to the detriment of the children in some fashion.
36.The move will allow the mother to fulfil her personal agenda by living full time with her husband and in her home that was purchased with the specific intention of adopting a lifestyle which included having both children living with her as integral members of her household. In her discussion the mother revealed a tendency to minimise the implications and impact that relocation might have on the children through being uplifted as significant members of their father’s household.
37.The father on the other hand is anxious to maintain an active and regular role in his children’s lives rather than be moved to the periphery of their lives through the mother’s unilateral decision to reorganise the living arrangements of the children irrespective of his wishes. He presented as a committed parent keen to invest energy into the upbringing of his two daughters.
38.The fact that one of the children declared to me that “mum and dad hate each other” and their awareness that there is no communication and no cooperation between the parents exacerbates the difficulties being experienced by the children in this matter. They each want to please both parents but know that in the circumstances there is no outcome that will have this result.
RECOMMENDATIONS
39.I have no worthwhile recommendations to make in this matter and shy away from the temptation to do so simply because of an expectation that I should conclude a report in such a manner.
40.No particular weight ought to be placed on the wishes of the children. One child is too young and inexperienced to make a choice of this magnitude. Her view are limited to and only expressed in terms of what she imagines to be the attractions of ‘country life’ over living in a suburban setting. The older sibling on the other hand has a healthy and disarming ambivalence because she is able to contemplate the advantages as well as the drawbacks of relocating from the city atmosphere where she gets to enjoy life with both of her parents to a rural setting and township where she lives full time with her mother but has her father less conveniently positioned in her life.
A number of further points emerged from Mr Percival’s oral evidence:
·Mr Percival accepted that there would be many positive features for the children in living at NC
·but the mother and GS presented life at NC in an idealised way and SJB had “picked up on it”
·the mother presented a very positive picture of life at NC with her husband, his immediate and extended family, schooling and the whole environment
·the mother considered that the children would be exposed to better values and lifestyle at NC than with the father
·she had not given such close consideration to the long term and transitional disadvantages to the children of changing residence and relocation, including moving away from the father and the less satisfactory aspects of country living
·EMB was enthusiastic about the school she had visited with its beach related activities
·SJB’s views on country life were “part of her hope, … part of her wish. But it is not part of her knowledge.”
·both girls “seem to be quite happy or content with the present arrangement, notwithstanding their views of moving to NC or not moving to NC.”
·neither girl had contemplated the possibility of living with their father and only having contact with their mother
·the mother living apart from her husband would cause distress to her which may flow on to the children and have some impact on her effectiveness as a parent.

Change in circumstances

The current shared care orders for EMB and SJB were made by consent on 2 March 2004.
The question therefore arises whether the threshold test enunciated in Rice and Asplund and relevant later authorities must be met.
Mr Brzostowski for the mother contends that this test does not apply to a relocation application unless there has already been a relocation hearing. He has found no reported case where a parent wishing to relocate has had to satisfy the Rice and Asplund test. The proposal to relocate, at least for the first time, is in itself such a significant change that the Court has to make consequential determinations of the fresh issue, and the attendant question of future residence and contact. Ms Tonkin for the father submits that the Rice and Asplund test must be met.
This case is not only about relocation of the mother. As the consent orders currently provide for shared care, issues concerning a change in residence are inevitably raised. It may well be that the mother’s proposition that Rice and Asplund does not apply is correct. However, for reasons I now give the threshold test is satisfied in any event.
The father says that the only change in circumstances is that the mother has made a unilateral decision to relocate to NC. The mother has been fully aware for a considerable time of the intention of her new partner and now husband, GS, to move to the south coast. He had indeed done so in January 2004 before she entered into the consent orders in March 2004. The father says that there are no other changes in circumstances nor strong grounds for changing the orders.
The mother says that there are a number of matters that justify reopening the consent orders
·the mother first became engaged
·the mother then marries
·the mother forms a wish to relocate with the children
·SJB in particular expresses a strong wish to move to NC.
I am satisfied that taken collectively these changes are of sufficient significance to require reopening the consent orders. In particular, the fact of remarriage is itself a sufficient reason (Rice and Asplund).

The competing proposals

There appear to be five competing proposals:
·continuation of the consent orders with shared care principally in Canberra. I accept on the evidence that this is the father’s clear preference
·the mother’s proposal for residence with her at NC
·the father’s fallback position for residence with him in Canberra. Although this was originally in the father’s application, I accept his evidence that it was put forward in the mistaken belief that the mother would move to NC regardless of the result of her application for relocation
·continuation of shared care with both parties moving to the south coast
·residence with the mother in Canberra.
Realistically the last two are not practical propositions:
·neither were proposed or supported by the parties
·the father gave evidence that he would be unlikely to gain similar employment on the south coast to that he currently undertakes
·the father is in a new relationship with VL who has a commitment in Canberra for at least 2006 with her daughter, S
·GS, the mother’s new husband, was headhunted for his south coast employment
·he has always wished to reside there
·all his family are there.

Best interests of the children

Shared care in Canberra, residence and relocation with the mother and residence with the father in Canberra are the only realistic options.
The best interests of the children is the paramount consideration, but not the sole consideration. In determining the best interests I am bound to consider the matters set out in section 68F(2) of the Act in so far as they are relevant.

Children’s wishes

Both parties accept that EMB who is now almost fourteen has, as Mr Percival reported, “expressed a high degree of ambivalence concerning the issue of relocation.” She is attracted by the high school and its beach related activities. Nevertheless, in October 2004 she indicated she wished to continue with her high school in Canberra for another twelve months. Both places hold attractions for her. If she had to decide between them she would not be able to. She was very clear that she would miss her father if she moved. Mr Percival noted that although EMB’s discussion echoed her parents’ thinking her ambivalent feelings were definitely her own.
SJB who is now ten has been saying for some time that she wants to move to the coast. The father says that she made this clear to him about October 2004. Her views have been straight forward and consistent. She has enjoyed her time on the property with its animals and outdoor activities.
Nevertheless Mr Percival cautioned against placing weight on her views. The mother and GS had presented life at NC in an idealised way and SJB had picked up on it. SJB’s views were limited to what she imagines, hope and wishes to be the attractions of country life over suburban living. SJB had not reached the stage in her development when she could “know” what life at NC held for her.
I note Mr Percival’s recommendation that no particular weight be placed on the wishes of the children. Mr Brzostowski submitted that care was needed in interpreting EMB’s statements as she is aware of the conflict between her parents and does not wish to displease either. I am also conscious that Mr Percival found that both girls “seem to be quite happy or content with the present arrangement, notwithstanding their views of moving to NC or not moving to NC.”

The wishes of the children cannot be ignored. However in light of Mr Percival’s evidence those wishes seem to be ambivalence in EMB’s case and idealised attraction in SJB’s, with an underlying content with the current arrangements.

Children’s relationships

The parties have shared in the residence and care for the children since October 2001. This has worked well for the children.
There is nothing in the evidence to suggest that the children have other than good and loving relationships with both parents. There is no doubt that SJB is extremely close to her mother. EMB also has a close relationship with her mother. But on the evidence I agree with Mr Percival that EMB’s relationship with her father is very good and closer than the mother would have us believe.
Both children have developed close and happy friendships with GS, his family and his two children, T and A. Similarly, shorter but good relationships have developed with VL and S. In Canberra they clearly have close friends.

Effect of separation from either parent

The principles in section 60B(2) include that children have a right to be cared by both their parents and a right of contact on a regular basis with both.
The children have lived with the parents on a week about basis for almost five years. This has enabled them to see both parents regularly. If the children move to NC with the mother there will be a significant reduction in the children’s time with the father – similarly with the mother if the children were to live with their father in Canberra. Both are inimical to the children’s best interests.
I accept Mr Brzostowski’s submission that the relationship between each child and the father is well established. This is also the case with the mother. I would also expect that each parent will properly foster the future development of these relationships.
As Mr Brzostowski was at pains to point out there are many sophisticated electronic means for communication today which allow a non resident parent to keep in contact with their children. But as GJB insisted these are not a full substitute for involved parenting.
The mother provided more than ample examples of the benefits for the children that might result from relocation – the extended family, the farm and rural life, the schooling opportunities. However, it is clear from the evidence as it was to Mr Percival that she has either understated or failed to carefully assess the disadvantages to the children, including the loss of contact with their father, his family and their friends, the impact on schooling and sports activities, and any drawbacks of country life.

Practical difficulties for contact

Relocation of the children with the mother to NC will result in a significant reduction in contact with the father. It will also be more expensive for the father if changeover is in Cooma. On the other hand it will reduce the cost to the mother who currently travels from NC to Canberra for her week’s residence and frequently takes the girls to NC for the weekend.
No change to the current shared care arrangements in Canberra will thus continue to expose the mother to extensive travel and its associated costs, as well as those for a second residence.
However, travelling time is not new for the mother and the children. Whatever orders are made the children will have to travel regularly as they do now.

Parenting capacity

Mr Brzostowski submitted that in assessing the mother’s capacity to provide for the needs of the children I should note:
·the mother has always been conscious and supportive of the relationship between the father and the children and that this will continue
·the mother entered into the shared care arrangement in October 2001 in difficult times when she “wanted to preserve him [the father] for the children. It “does not mean that the arrangement was a good one for the children.”
·the fact that the children have a strong relationship with their father is indicative of the quality of the mother’s parenting. She had not sought to poison the children against the father
·even if the father is a truly reformed alcoholic and reformed gambler, it is only human for the mother to have doubts about his capacity
·the father is still on medication for depression
·the mother better managed the family before separation
·she has shown a proper, and far better, sense of responsibility that is called for in a parent
·she is able to offer the stable support of her husband who has his own parenting credentials
·provided “the present artificial and oppressive circumstances do not continue”, the mother and GS will be able to offer a stable, loving, nurturing, wholesome and comfortable environment for the children
·an unhappy parent, as the mother may well be if the current commuting arrangements continue, is less able to offer a happy environment for the children
·the father imposed a very unfortunate history on his family and this has undoubtedly shaped the mother’s view of him
·the father is in a new relationship, but not married
·he has discussed with EMB a possible move to V, evidence of which only emerged in the family report.
Ms Tonkin submitted:
·Mr Percival took the view that “the mother’s needs may be met at the expense of some of the children’s needs. Her application is in the wake of her choice to live in NC rather than a decision to move because to remain in Canberra was to the detriment of the children in some fashion.”
·although she denied it, it was clear the mother has attempted to influence the children
·the mother had told EMB in October 2003 that she planned to move to the coast, causing EMB some anxiety problems at that time
·the mother agreed that EMB had suffered extreme stress and anxiety when she moved to high school in 2005 and it was likely she would suffer similarly in relocating
·the mother minimised the impact of such a move
·although the mother raised allegations about the father’s depression and alcohol consumption, nothing of significance was put forward during the years of shared care such that she sought to change this arrangement prior to her decision to relocate
·Dr Doumani’s evidence supported that of the father that any problems associated with depression and alcohol had been resolved.
Having regard to the evidence, in particular the correspondence between the parties’ solicitors, I think it unlikely that the mother spoke with EMB in October 2003 about moving to the coast. It is more probable that this occurred in October 2004. It is also likely that the mother has sought to influence the children in favour of a relocation, if not directly then subtly.
The mother has raised the father’s past problems with gambling, alcohol consumption and depression. The father acknowledged that these caused serious difficulties for the mother and the family. I am satisfied from the evidence of Dr Doumani, the father and VL that gambling and over consumption of alcohol are things of the past, and have been of no significance since the start of shared care. The father’s depression is under control “in excellent fashion”.
EMB has experienced some severe anxiety problems on a number of occasions, notably as the result of bullying in 2003 and in transition to high school at the beginning of 2005 and extending to later in the year. This has required medical attention and counselling. It is highly likely, as the mother accepted, that these anxiety attacks will accompany any move to a new high school at the coast. I am not in a position to guess how long they may last. I note however that EMB has overcome the problems at her current school and is performing well in her studies.
I accept without question that a continuation of the current arrangements will place some stress on the mother and this may well flow on to the children.
On the evidence I am satisfied that both parents have amply demonstrated their capacity since 2001 to successfully parent the two girls, although each has shown different strengths and weaknesses.

I would expect this to continue whichever of the proposals I decide upon.

Protection from harm and family violence

The mother gave evidence of two violent incidents that had occurred in August 2000 and April 2001 when the parents’ relationship was breaking down. They were both serious. They both predated the commencement of shared care. I accept that the father is genuinely remorseful. There have been no further incidents of violence by the father, although in August 2003 the father’s former girlfriend, T, was physically abusive towards him.
More recently there was a minor isolated incident of violence involving the mother’s husband and his son T. T punched a hole in the wall.
I am satisfied that the children would not face the risk of harm from violence under any of the proposals. Nor is family violence of any significance likely.
For the reasons I have given earlier, I believe that anxiety attacks at least in the short term will accompany any move for EMB to a new high school at the coast.

Attitude to the children and parental responsibilities

I accept Mr Brzostowski’s submission that it is quite unrealistic to expect the mother to be unaffected by the father’s past conduct and to think fondly of him. It is understandable that she will have some lack of trust in him. Nevertheless the evidence before me is that that conduct is long past.
What concerns me is that the mother has downplayed the importance of the father in parenting both in the past and for the future. The contact she has proposed for the father she says would not be sufficient for her if the proposal were reversed. This is in the context where the children have had week about residence since October 2001.
The mother has also presented a very positive picture of life at NC. As Mr Percival said she had not given such close consideration to the long term and transitional disadvantages to the children of changing residence and relocation, including moving away from the father and the less satisfactory aspects of country living.
I do not doubt the strength and sincerity of the mother’s desire to relocate to live with her husband. It is completely understandable.
I have reached a firm conclusion however that consciously or not the mother is placing her interests above those of her children. As well as enabling her to live full time with her husband a move will allow her to meet her long held goal of living in the country.
In my view the evidence suggests that the current arrangements have promoted the best interests of the children since 2001. No substantial detriment arising from the operation of these arrangements has been adduced in evidence.
The father wishes to continue the shared care arrangements. He is complimentary of the parenting of the mother and does not understate her importance. I am confident he will continue to promote the mother’s role and relationship.

Conclusions

The three competing proposals are continuation of the current arrangements, residence and relocation with the mother to NC and residence with the father in Canberra.
I have reached the view that the best interests of the two girls are served by a continuation of the current shared care arrangements:
·there has been a well settled and established pattern of shared care and residence since October 2001
·this appears to have been working well
·no significant disadvantages to the girls from this arrangement have been put forward
·both girls will be content with it continuing, notwithstanding SJB’s expressed view
·both parents will continue to have significant involvement in the girls’ lives
·the girls’ schooling where they are performing well, friendships and sporting and other activities will not be disrupted
·the mother’s employment will continue as currently, although she may have to undertake in Canberra what she otherwise would from NC
·the children will continue to have the opportunity to enjoy country activities and to develop their relationships with their mother’s new family at weekends and during school holidays.
I accept that one significant disadvantage could be the unhappiness the resulting separation of the mother from her husband may bring her. It is not in the children’s interests to spend half of their time with an unhappy and discontented parent. Another disadvantage of course is that the mother will continue to have to maintain two households and to undertake considerable travel.
Although there certainly would be some positives for the children in moving to NC, they would not be as significant as the disadvantages such as:
·the routine involvement of the father in the girls’ lives would be significantly reduced
·this would make it considerably more difficult for him to maintain an effective relationship with the children who are both currently strongly attached to him
·it would be disruptive to the children’s schooling, their relationships with their large circle of friends and their other activities
·EMB could experience a reoccurrence of her anxiety attacks in changing schools, at least in the short term.
Residence with the father is not the preferred option of either parent. In my view it is not in the children’s best interests in the present circumstances, especially because of its likely effect on the mother’s regular involvement with the children to whom she is very close. In any event the mother has clearly indicated that she wishes to continue shared care if she is unsuccessful in seeking relocation.
The best interests of the children are the paramount consideration but not the sole consideration. I am fully conscious of the mother’s perfectly understandable desire to reside full time with her husband at NC and her right to freedom of movement. I accept that it is not possible for GS to move to Canberra, as it is not realistic to expect the father to move to the south coast.
I have therefore, although not without some hesitation, reached the view, that the shared care arrangements that have been in effect since October 2001 should continue, “bearing in mind that ultimately the decision must be one which is in the best interests of the child[ren]” (Bolitho and Cohen (2005) FLC 93-224).
The mother’s application of 6 April 2005 must be dismissed. The consent orders of 2 March 2004 will remain in operation.

I certify that the preceding one hundred and eight paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 20 June 2006