SADAT & LABERGE
[2020] FCCA 1230
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SADAT & LABERGE | [2020] FCCA 1230 |
| Catchwords: FAMILY LAW – Parenting – interim relocation application – where Mother seeks to relocate with children – Mother’s residence being sold and minimal job prospects in current town – where Father’s own actions likely to have worsened Mother’s job prospects in current town – where children have strong relationship with both parents – compared to current spend time with arrangements little change in actual time spent between children and the Father following the relocation – relocation with children permitted – matter transferred to local circuit. |
| Legislation: Family Law Act 1975 (Cth), s.60CC(3)(d) & (e) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders [2007] FamCA 102 Sigley v Evor (2011) 44 Fam LR 439 |
| Applicant: | MR SADAT |
| Respondent: | MS LABERGE |
| File Number: | CAC 285 of 2019 |
| Judgment of: | Judge WJ Neville |
| Hearing date: | 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Canberra |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | D. N. Wilson & Co |
| Counsel for the Respondent: | Ms M. Davis |
| Solicitors for the Respondent: | Gordon Garling Moffitt Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Wagga Family Lawyers |
ORDERS
UNTIL FURTHER ORDER, THE COURT ORDERS BY CONSENT THAT:
The parties have equal shared parental responsibility for the children, X (born: 2008), Y (born: 2012) and Z (born: 2014) (“the children”).
UNTIL FURTHER ORDER, THE COURT FURTHER ORDERS THAT:
All previous parenting Orders be discharged.
The children live with the Mother.
The Mother be permitted to relocate forthwith with the children from the Town A area to the Town B area.
Once she has relocated, and notwithstanding Order 1, the Mother is permitted to change the enrolment of the children’s school from Town A to school(s) in the Town B area.
Unless otherwise agreed in writing between the parties, the children are to spend time with the Father as follows:
From now until two months after the Mother relocates with the children:
(a)Each alternate weekend from 4:00pm or after school on the Friday to 9:00am or the commencement of school on Monday in Week 1;
(b)By telephone or Facetime or other similar application on not less than two occasions per week at 7:30pm, with the Father to initiate the call;
(c)During Term 1, 2 and 3 gazetted school holidays, with such time to commence at the conclusion of school to the following Wednesday at 4:00pm.
From two months after the Mother relocates with the children onwards:
(d)Every third weekend from 6:00pm on the Friday to 5:00pm on the Sunday;
(e)By telephone or Facetime or other similar application on not less than three occasions per week at 7:30pm, with the Father to initiate the call;
(f)For the first half of Term 1, 2 and 3 gazetted school holidays, with such time to commence at 10:00am on the first Saturday of the school holidays and conclude at 10:00am on the middle Saturday of the holidays;
(g)For Term 4 school holidays, for two blocks of time:
(i)In odd numbered years from 6:00pm on the day school concludes to 6:00pm Boxing day, and from 10 January to 20 January; and
(ii)In even numbered years from 6:00pm Boxing Day to 2 January, and from 10 January to 20 January.
Unless otherwise agreed between the parties in writing, changeover is to occur at Town C McDonald’s at the commencement of the children spending time with the Father, and at Town D McDonald’s at the conclusion of the children spending time with the Father.
The time in Order 6 be varied to ensure the children spend the Father’s Day weekend in the Father’s care, and the Mother’s Day weekend in the Mother’s care.
The parties be restrained from discussing these proceedings in the presence or hearing of the children, and are to do everything possible to ensure that others do not do so.
The parties be restrained from making derogatory comments about the other party or their significant other, in the presence or hearing or the children, and are to do everything possible to ensure that others do not do so.
The parties be restrained from posting any derogatory comments about the other party or their significant other on any social media platform or medium.
The parties be restrained from consuming alcohol over the legal driving limit or consuming prescribed medication above any prescribed quantity whilst the children are in their care.
At all times, the parties ensure that the children are properly restrained in any moving motor vehicle.
Each party keep the other informed of any medical emergency in relation to the children.
These Orders act as an authority for the parties to access any information to which parents would ordinarily be entitled from the following:
(a)The children’s treating medical or mental health professions;
(b)The children’s school or other education providers, including after school care and tutors; and
(c)Providers of any extra-curricular activities.
In the event the Father cannot spent time with the children due to his work commitments, the children are to be returned to the care of the Mother.
The matter be transferred to the Dubbo circuit of the Federal Circuit Court of Australia.
The matter be adjourned for mention or further directions on a date and time to be advised in the Dubbo circuit.
IT IS NOTED that publication of this judgment under the pseudonym Sadat & Laberge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 285 of 2019
| MR SADAT |
Applicant
And
| MS LABERGE |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue to be determined immediately arises from the Mother’s Application in a Case filed on 3rd April 2020. For the purpose of this Judgment, because it is the Mother’s Application for relocation and notwithstanding her being the Respondent in the substantive proceedings, the Mother will be referred to as the Applicant, and the Father will be referred to as the Respondent. The issue to be determined is whether or not the Mother should be permitted to relocate from Town A to Town B[1], on an interim basis, with the three children of her relationship with the Respondent Father. He opposes the relocation. The Independent Children’s Lawyer (“ICL”) supports it.
[1] Town A to Town B is a distance of some 341 kilometres; a drive of just under 4 hours. In her Response, filed 3rd April 2019, as one of her Final Orders sought, the Mother sought to relocate to Town B. By an Application in a Case, filed 6th April 2020, the Mother again sought to relocate. There was some urgency because the house in which she, the children and her [new] Husband now live was in the process of being sold.
The three children of the relationship are aged, respectively, X (12 years), Y (8 years), and Z (approximately 5½ years).
Among other things, the Mother says that:
(a)the amount of time the children spend with the Father currently would be very little different to what she proposes if she was permitted to relocate;
(b)her new Husband has the promise of a job in Town B (unfortunately few details are currently available);
(c)the prospects for her to obtain employment are good, and certainly much better than in Town A (for reasons explained below);
(d)conversely, her employment prospects in Town A have been “poisoned” (her words) by the Father’s conduct (also noted below);
(e)she and the children are about to lose their accommodation in Town A; and
(f)conversely, it is contended that there is a greater range of housing available to her in Town B.
Particularly in the light of the recent Full Court decision in Franklyn & Franklyn, for the reasons that follow, the Mother should be able to relocate to Town B with the children as she proposes.[2]
[2] Franklyn & Franklyn [2019] FamCAFC 256.
The Mother’s evidence
The Mother’s evidence, which is taken primarily from two Affidavits, filed 6th December 2019 and 3rd April 2020, was as follows. The latter Affidavit refers to some material in the Mother’s original Affidavit, filed exactly one year ago on 3rd April 2019, which contained some important information as well, noted below. What follows is an annotated summary of the Mother’s evidence taken from the Affidavits mentioned. She deposed that:
a)Shortly before separation, in January 2017 the Mother obtained a job as a labourer at Employer E at Town F;
b)Initially, there was a shared care/time arrangement with the Father, although the Mother deposed that the Father was not heavily or strongly involved with the children and their care in their early years;
c)There was significant drug and alcohol use by the Father prior to separation. Part of the alleged drug use by the Respondent included prescription pain relief medication;
d)Around the time of separation, the Mother said that the Father threatened self-harm if she left him. She also said that the Father was regularly verbally abusive towards her;
e)She started a relationship with a man who also worked in the same company/area as the Mother. The Father still had friends who also worked there. On the Mother’s evidence, he started to “bad-mouth” her and her partner. At par.42 of the Mother’s Affidavit, filed 3rd April 2019, there is a list of SMS messages from the Father to the Mother regarding what she described as his attempts to sabotage her work environment through bullying and harassment. The following is a small sample of what, in my view, are, overall, abusive and threatening messages to the Mother, some extremely and appallingly so (dates supplied in the Affidavit): “Have a good night at work where everyone hates you”; “Hey must be hard to face up to work knowing everyone hates you an is talking about you an old pops Have a good rest of your night”; “Baaahhhhhhaaaa your funny you really are one fucked up unit you no that wait and see wats in store for you now”; “You know exactly every dog has it’s day Ms Laberge yours will come”; “your fucking joke you queer twisted fucked up unit there’s another bombshell to come for you oh Lordy hahahaaaa”;
f)In the same Affidavit, the Mother recounted a number of other instances that, on her evidence, involved both the children and her new partner (now Husband, Mr G), which she said were threatening (these included difficulties at changeovers);
g)On an occasion in December 2018 there was a physical contest between the Mother and the Father’s live-in girlfriend, Ms H. Unfortunately, this happened in front of the eldest daughter of the parties, X. Both Ms H and the Mother made statements to the police; an interim ADVO was taken out against the Mother (the respective statements are annexed to the Mother’s Affidavit);[3]
h)The shared care and changeover arrangements between the parties, according to the Mother, had not been working for some time, not least because the Father’s more recent work commitments as a labourer regularly do not allow him to spend time with the children as previously agreed;
i)There was an instance when the children were in the Father’s care (February 2019) where he had passed out; they had drawn over the Father’s face and sent a picture of this to the Mother. It is Annexure I to the April 2019 Affidavit. I refrain from making comment on the artistic abilities of the children. However, given that the “art-work” appears to be done with dark coloured marking pen, and that the art-work is reasonably extensive (glasses, moustache, goatee beard) it may reasonably be assumed that the Father was unresponsive, well and truly “in the arms of Morpheus” so to speak, and well beyond being awakened easily or readily. Morpheus, of course, was the god of dreams, even self-induced ones, for example, by alcohol or otherwise. These are not “findings”, per se, merely observations about the Father’s care and attention to his children, and of course their attention given to him while he was, apparently, in a state of self-induced incommunicado;
j)In her Affidavit, filed 6th December 2019, the Mother set out what arrangements she proposed for the children’s time with the Father, schooling and other practical matters should she be permitted to relocate to Town B. She also included matters relating to accommodation and employment. I need only note here that the Mother deposed to there being a significantly larger number of houses available in Town B compared to Town A. She confirmed also a larger number of employment possibilities in the former compared to the latter. Later, she deposed to her new Husband having a job offer in Town B; regrettably no evidence was provided about this job. Somewhat surprisingly, no one referred to the significantly different population sizes of Town A (approximately 3000 people) compared to Town B (approximately 12400 people). It may be that the size comparison was implicit in the larger number of available houses in Town B to which the Mother and her lawyer both referred. I simply note these matters without taking them formally into account because, obviously, I can only properly have regard to the evidence adduced by the parties.
[3] In oral submissions on the Father’s behalf, his lawyer confirmed that the Father is no longer in a relationship with Ms H.
At par.7 of the Mother’s Affidavit, filed 3rd April 2020, she confirmed that consent Orders were agreed between the parties whereby the children would live primarily with the Mother and spend alternate weekends and one overnight in the “off week” with the Father. There were also some details regarding school holiday time with the Father.
In par.9 of the same Affidavit, the Mother said that, if she were permitted to move to Town B, the time that the children spend with the Father under the consent Orders from October 2019 “would change very little in terms of the children’s relationship with their Father.” She deposed that the Father had no involvement with the children’s school or sporting events, or extra-curricular activities.
In a similar vein, at par.33, the Mother deposed that her move to Town B with the children would not relevantly impact on their time with the Father provided for in the existing Orders. Despite this comment, she proposed that it would be in the children’s best interests if they spent every third weekend with the Father rather than each alternate weekend. This is in the light of the significant travel distance and time between Town B and Town A. She further intimated that her parents were moving to the Town B area very soon. Evidence in this regard was, at best, rather sparse.
At par.10 she deposed to her inability to obtain work in Town A, particularly because of the Father’s sabotaging efforts of her position (and that of her Husband) as earlier noted. Later in the same Affidavit (par.12) she set out a long list of occasions (dates supplied in the Affidavit) where the Father did not (or was not able) to spend time with the children. The Father later deposed that these occasions were invariably due to his work commitments changing.
Not directly relevant to the issues currently to be determined are (according to the Mother) the Father’s frequent non-compliance with Court Orders, notably (but not exclusively) in filing material in response to the Mother’s proposed relocation. The Mother also deposed to ongoing co-parenting difficulties with the Father. In particular, in her view, his unsafe actions involving the children whilst in his care, which included him taking the children hunting, driving with Z not in a prescribed child-restraint seat, and the children attending his employment effectively unsupervised.
In addition to the Mother’s evidence, her lawyer, Ms Rentoule, filed an Affidavit on 21st April 2020. Its purpose was to confirm and to provide evidence that the Mother had to vacate her current residence because it was being sold. There was attached to this Affidavit a letter from the real estate agent confirming the sale of the property. The Affidavit also provided information regarding the number of potential/suitable rental properties in Town A (only two were identified) compared to the number of suitable rental properties in Town B (27 such properties were identified). Copies of the relevant searches were attached to this Affidavit.
The Father’s evidence
For the purposes of the current urgent Application by the Mother to relocate, I need only refer to the Father’s Affidavit, filed 14th April 2020, which focussed primarily on the issue of relocation. Briefly stated, the Father’s evidence was as follows:
a)He had completed a “Keeping Kids in Mind” parenting course in December 2019;
b)All of the children attended Town A Public School. He noted that the eldest, X, was in Year 7 at Town A High School. The children have many friends there;
c)He confirmed that the fifteen occasions the Mother listed in her Affidavit when he did not spend time with the children in accordance with the Orders were due to changes in his work roster. The Father confirmed (par.5) that he was now working full-time as a labourer, which enabled him to spend time with the children every second weekend “and at other times”. He said that the children loved coming to his home to play with and care for the animals there, which he kindly listed;
d)The Father noted the significant distance between the Mother’s proposed residence in Town B and his home, which I have already recorded. He expressed his understandable concern at the likely fatigue the children will suffer with such travel, and the likely/possible impact it could have on their schooling. He noted possible/likely changeover times that should/would also need to be taken into account;
e)He raised as an issue the prospect of the Mother’s Husband getting work in Town A. In this regard he provided the results of various “job searches” with various companies in Town A. This was presumably to indicate that there was not any relevant “need” of the Mother’s new Husband to move to Town B;
f)At pars.13 – 15, the Father canvassed the Mother’s contentions that he sabotaged her employment in Town A. Rather curiously, at par.15 he stated: “Not long after Ms Laberge and Mr G resigned I was told by, Mr J, their shift boss, the reasons for their resigning. He said words similar to: “If they did not resign they would be sacked.” Leaving to one side the hearsay nature of the evidence, it actually tends to corroborate one significant aspect of the Mother’s claims, namely that there was some hostility or adverse disposition to her employment discussed between the Father and a person apparently in some position of influence in at least one major place of employment;
g)Further, after stating (nothing more) that there were many reasonably priced houses in Town A, the Father stated (par.17) that because his work commitments had changed, he “will now be attending as many school functions as possible.” This, too, seems at least to imply that the Mother’s contention that the Father had not been involved in the children’s school activities has more than a kernel of truth to it. Regrettably, there was no information provided by the Father about his work commitments, its location, or anything else;
h)The remainder of the Father’s quite brief Affidavit disputes the Mother’s various contentions about him potentially putting the children at any relevant risk. He does say however, at par.19: “I have never exposed the children to any danger. I was never given any warning about Z not being in a restraint [whilst driving].” Although quite an ambiguous statement, one reading of it would tend to suggest that he was unfortunately unaware that young children needed to be in a proper restraint whilst being driven.
The S.11F Memorandum
The Memorandum of Ms K, dated 6th June 2019 (released to the parties on 20th June 2019) became exhibit A. The lawyer for the Father fairly pointed out that, given the circumstances of the parties had changed significantly, little weight could be put on the Memorandum. That said, I note the following.
By way of background as noted in the Memorandum, the Mother confirmed on a number of occasions to Ms K that she was the victim of controlling family violence, intimidation and harassment by the Father, which took place at home, at her workplace and in the local community. She confirmed that she continued to receive denigrating and emotionally abusive text messages from the Father. As earlier recorded, such matters are certainly laid out in the Mother's first Affidavit, filed 3rd April 2019.
For his part, the Father confirmed, partly in response to the Mother's allegation, that during the relationship and after separation, he abused alcohol. He said that he smashed items and slammed doors.
In pars. 26 – 40 of the Memorandum, the children confirmed that the Father was previously very cranky, would drink regularly, and was very unhappy especially about the breakup of the marital relationship. They also confirmed that there was considerable conflict between the parents and that that conflict still occurred, not infrequently, at changeovers. Fortunately, the children also said that the Father was better now that he was not drinking. They said that he was not as cranky, which made it, so they said to Ms K, easier for everyone. The children noted too that the Father regularly spoke very badly and harshly about the Mother and her then partner, now Husband.
Ms K recommended that the present equal‑time parenting arrangement be suspended. As noted earlier in these reasons, this in fact occurred with the consent Orders in October 2019. She also recommended that the Father undergo psychological testing if the matter proceeded to a final hearing.
Although the Mother raised the issue of relocation to Town B with Ms K, it was not addressed in the Memorandum.
Outline of submissions for the Applicant Mother
The Applicant Mother filed an Outline of Submissions on 17th April 2020. They were as follows:
1) These submissions are provided in accordance with Order 1 of the Orders of Judge Neville made on 7 April 2020.
2) The parties separated on 30 June 2018 after a fourteen year relationship. There are three children, namely X 12, Y 8 and Z 5. Following separation the parties shared the care of the children on a week about basis. The routine of care was worked around the parties’ rosters which were week-on/week-off. The Father filed an Initiating Application with the court on 2 February 2019 seeking primary residence of the children. The Mother's response was for primary residence and to relocate with the children to Town B.
3) On 17 October 2019 the parties entered into interim orders by consent providing for the children to live primarily with the Mother and spend regular time with the Father. That general arrangement is not in dispute.
4) The matter comes before the Court in circumstances of some urgency as the Mother and children will soon have to move and they have no available accommodation in Town A (April 2020 para 31). The Mother says that the best interest of the children are met by moving to Town B and spending time with the Father each third weekend. She sets out the proposed arrangments for the children in Town B in her Affidavit of 6 December 2019, noting that school changes will not be initially required following the move.
5) In the six months since the October Orders were made, the Father has been unavailable for the children to spend time with him on at least fifteen occasions (April 2020 para 12). While many of those occasions were Thursdays, when the Father says he was working, many do not coincide with work days. The Mother’s proposed relocation would see a shift from alternate weekend and school holiday time to time each third weekend and school holiday time (6 April 2020). On the history since Orders were made in October 2019, there would not be a reduction in the Father’s actual time spent.
6) The Father's affidavit of 10 April 2020 (at para 5) advises the Court that he lost his job on 31 March 2020, that he will now work full time and can comply with the current orders. The assertion is made without any detail as to his working hours, location, roster, regular employers or other information to assist the Mother and the Court.
7) The Father also asserts that he can now attend as many school functions as possible (April 20 para 17). The parties joint evidence before the Court is that the Father’s roster when working provided for 26 weeks work a year. Notwithstanding that history, the Mother's evidence is that to date, the Father has never attended, been involved or participated in any decisions regarding the children, their education or extra-curricular activities.
8) The parties do not have a positive co-paretning relationship. The Father is unable to contain his derogatory views of the Mother and her now husband, Mr G, in the presence of the children (Sept 19 paras 9-23; April 20 para 4, 17; Memorandum para 41). The Mother has serious concerns about the impact on the children of the Father’s views. It is submitted that a move away may assist the daily hostility experienced by the children.
9) In addition, the Mother has concerns about the Father’s level of supervision of the children and his capacity to be child focussed. The Father does not answer her allegation of over-crowding in the car or his failure to use proper child restraints.
10) This is a matter where Franklyn & Franklyn [2019] FamCAFC 2526 is directly relevant to the court’s consideration of whether appropriate time arrangements can be facilitated in the interim from the Mother’s proposed choice of location.
Outline of submissions for the Respondent Father
The Respondent Father filed an Outline of Submissions on 17th April 2020; they were as follows:
1. The Mother has filed an Application in a Case seeking that she relocate with the children and her husband to the Town B area.
2. The matter has been listed for final hearing on the 11 November 2020.
EQUAL SHARED PARENTAL RESPONSIBILITY
3. The Mother in her application seeks an Order that the Court make an order for equal shared parental responsibility.
4. The Father, in his response is in agreement to that Order.
5. Section 61DA of the Family Law Act 1975 (“the Act”) requires the Court, when making a parenting order in respect of children, must apply a presumption that it is in the best interests of children for parents to have equal shared parental responsibility for the children. In this matter Section 661DA(2) is not relevant in these proceedings.(emphasis added)
In sub paragraph (3) of Section 61DA –‘ when the court is making an interim order, the presumption applies- unless……’ In Eagleton & Eagleton 2019 FAMCA 894 at paragraph 48, citing Kent J in Heath & Hemming (No 2) Fam CA 749 at {89} said:
“ ……..having regard to Marvel & Marvel [2010] Fam CAFC 101 it seems to me that the trial judge should take the approach of making an order for equal shared parental responsibility when the presumption in Section 61DA applies”
6. It is submitted, that as the presumption applies, it mandates the Court’s power to making parenting orders, thus including Section 65DAA (2) –“the court must consider the child spending substantial and significant time with each of the parents would be in the best interests of the child, and at subsection (d) “…. is reasonably practicable”.
REASONS FOR RELOCATING
7. The Mother’s reasons for relocating to the Town B area are limited to:
(i) There only being one house for rent in Town A at the time of preparation of her affidavit.
(ii) There is no suitable employment for the Mother in Town A. This is disputed by the Father in his affidavit of the 10/4/2020.
(iii) She is unable to obtain employment with her former employer, Employer E, as the Father, she alleges, sabotaged her position. The Father in his most recent affidavit, disputes that; and by implication asks that ‘ why should he suffer significant loss of time with the children for behaviour attributed to the Mother and her new husband that caused them to lose well paid employment?’ This evidence cannot be tested at an interim hearing.
(iv) There is no satisfactory evidence “other than a notice to quit” the present premises that brings this matter into the “urgent” criteria. There is other accommodation available in Town A.
OBSERVATIONS
8. Neither the Mother or her husband have obtained employment in Town B. The prospect of employment is speculative.
9. There is no evidence that the husband is unable to obtain employment in Town A.
10. The three children attend the same school, have many school friends and enjoy spending time with the Father on the farm and at their former home. Y is in his 4th year at Town A Public School and X is in her 8th year at that school.
11. The Father is now not constrained by his work roster at his former employment and now, as deposed, is able to spend significant time with the children.
12. The travel arrangements as proposed by the Mother (see Father’s affidavit 10/4/2020, paragraphs 8, 9 & 10) are not in the children’s best interests.
13. The Father has a loving and committed relationship with the children. As the Mother states at paragraph 17 in her affidavit of the 6 December 2019- “I have no intention of alienating Mr Sadat from the children, they love him” (emphasis added). The Father and the children’s relationship would be irreparably damaged if relocation is allowed.
14. The Mother has no ties nor family in the Town B area.
15. The Court has referred the parties to the decision of Franklyn [2019] Fam CAFC 256. That case is significantly distinguished from this matter. In Franklyn the Father had little or no contact with the child, there was a family violence order against the Father. The Full Court said at 28,29 – “While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part V11 of the Act. ….”only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests…” (emphasis added)
16. The Mother’s intention is to relocate permanently – “paragraph 13, 6 December 2019 setting out their intention to buy a home in Town B.
17. The attempt by the Mother to establish an “unacceptable risk” as set out in her affidavit of the 2/4/2020 at paragraphs 18 to 30 does not meet the relevant threshold and should be given little or no weight.
18. The children’s current circumstances – school, extracurricular activities, friends is stable and should not be disturbed.
19. The Mother has relied on throughout the pleadings as to the Father’s behaviour during the relationship. There is no doubt that the Mother has a strong antipathy towards the Father, notwithstanding the undisputed evidence that the Father has ceased drinking. The Court should be mindful that the Mother and her husband wish to put a significant distance between themselves and the Father. Not so much as to move to a new location, but to establish a new family group without his interference. This will have an adverse effect on the children
CONCLUSION
20. There remains no onus of proof on the party seeking to relocate as to why they should be allowed to do so.
21. The paramount consideration remains the child’s best interests. Section 60CC (2) and (3) of the Act set out the considerations as to best interests and remain the template around which any decision should be structured.
The Respondent Father also informed the Court (and the other parties) via email dated 20th April 2020 that he sought to rely on the decision of Masson & Parsons and Anor [2017] FamCA 789, specifically paragraphs 458 to 460 inclusive. He noted that “the matter was ultimately upheld in the High Court on a different issue, not the relocation issue.”
Outline of submissions by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed an Outline of Submissions on 21st April 2020, which were as follows:
WRITTEN SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER
1. These proceedings relate to X born in 2008, Y born in 2012 and Z born in 2014, (“the children”).
2. The parties commenced in a defacto relationship in 2005 and separated on 30 June 2018. These proceedings were commenced by way of Initiating Application by the Father on 20 February 2019. The matter has been listed for a final hearing on 11 November 2020.
3. The Mother has filed an Application in a Case seeking urgent Interim Orders that she be able to relocate with the children and her husband to Town B from Town A. The Father opposes the Mother’s Application for an Interim Relocation Order and maintains that the relocation issue should be dealt with at the Final Hearing.
4. The Mother seeks the Interim Relocation Orders on the basis of urgency in the following circumstances:
i) Where the family has been given notice to move out of their current accommodation in Town A in the next few weeks and have no other available accommodation in Town A and there is limited availability of accommodation in Town A (paragraph 31 of the Mother’s affidavit sworn 2 April 2020).
ii) That neither the Mother nor her husband are currently employed in Town A and their opportunities for employment are limited or non-existent in Town A. The Mother’s husband has obtained employment in Town B (paragraph 32 of the Mother’s affidavit sworn 2 April 2020).
iii) There are significantly greater accommodations and employment opportunities for the family in Town B (paragraph 5 of the Mother’s affidavit sworn 2 April 2020).
5. It is not disputed that:
i) There are numerous occasions that the Father has failed to comply with the current Consent Orders of 17 October 2019 and has not spent time with the children in accordance with those Orders. Those occasions are listed by the Mother at paragraph 12 of her affidavit sworn 2 April 2020 and are not disputed by the Father in his evidence.
ii) The Father has never involved himself with the children’s schooling or extracurricular activities (paragraph 9 of the Mother’s affidavit sworn 2 April 2020).
Relevant Section 60CC Matters
Benefit of a meaningful relationship with both parents
6. It is uncontested that since the Orders of 17 October 2019, the children have lived primarily with the Mother and have spent time with the Father.
7. It is uncontested that the Father has failed to take full advantage of the Orders afforded to him of 17 October 2019, to spend regular time with the children.
The need to protect the children
8. The Family Consultant notes in her report dated 20 June 2019 that: “Information obtained during this preliminary assessment, particularly in regards to the children’s interviews, raised concerns in regards to the children’s emotional wellbeing in regards to the present parenting arrangement….”and “That these young children have been exposed to Mr Sadat’s strong negative emotional responses to his post separation situation and Ms Laberge and her partner, is highly concerning”. The Consultant further notes, “In addition, there are serious allegations of family violence and parental conflict in this matter.”
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from their Father
9. The evidence before the Court is that the Father has failed to spend time with the children in accordance with the current Orders dated 17 October 2019. The Mother’s proposals for the time that the Father spends with the children should she be permitted to relocate to Town B, would result in their being little reduction in the time that the Father currently spends with the children.
Children’s Views
10. On 16 April 2020, I interviewed the three children.
11. The two eldest children, X and Y, indicated their view that they would be happy to relocate to Town B if the Court allowed the family to do so. They did not express any concerns regarding a change of school or friends. I did not ask Z about the relocation. X and Y felt they would be able to maintain their current relationship with their Father if they moved to Town B. X noted that “He doesn’t have us all the time anyway”.
Summary
12. In all the circumstances and in consideration of the evidence available to the Court, the ICL is of the view that there is a reasonable basis upon which the Court could find that it is in the children’s best interests to relocate with the Mother away from the Town A area to the Town B area in accordance with the Orders sought by the Mother in her Application in a Case filed herein.
In her oral submissions, the ICL said that she did not ask the children as baldly as might have appeared whether they thought they could maintain their relationship with the Father if they moved with the Mother to Town B. It was, she said, much more subtle and nuanced, which included questions about how they might feel about moving and seeing their Father on weekends and in holidays.
The ICL confirmed that, in her view, the relationship between the children and the Father is strong, based on her questioning of, and general discussions with, the children. This was in circumstances where, in the light of the Father’s work commitments, the children had not spent as much or as regular time with him, as the Orders prescribed, yet (in her view) their relationship with the Father remained strong.
Outline of principle
In the Full Court decision of Morgan v Miles, at [74], Boland J said:[4]
The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[4] Morgan v Miles (2007) 38 Fam LR 275.
At [79], her Honour set out, in significant detail, the matters that the Court needed to take into account in any parenting matter that involved relocation. At [81], her Honour again stressed the need for there to be the “structured exercise of the Court's discretion” by examining the issues in dispute against the relevant “s.60CC factors.” Obviously this was a reference to s.60CC of the Family Law Act1975 (Cth) (“the Act”).
At [83], her Honour went on to state that, generally, Courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child, if only a short period had elapsed after a unilateral relocation by one parent. Her Honour noted further, at [84], that, usually, Judges recognised that these were difficult cases, often with far‑reaching consequences for the child. I should also note that they are also difficult for the families involved. Precisely because they are such difficult cases, as far as possible, it should be the case that the inquiry undertaken by the Court:
Required the full investigation which can only occur at a final hearing.
At [88], her Honour went further and said that:
It is highly desirable that, except in cases of emergency, the arrangements which will be in the child's best interests should not be determined in an abridged interim hearing.
A little later, at [91], her Honour stated (emphasis added):
It is not distance, per se, which should be the determinative criteria. In many cases, what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different, for example, for an infant or toddler developing attachments to those of older children, or for economically impoverished families where fuel costs may be unaffordable, thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non‑relocating parent, particularly if the child has a history of living predominantly with the relocating parent and spending time with the other parent where, with alternate arrangements, the child's relationship with the non‑relocating parent can be maintained and fostered.
Two other cases, should be briefly noted.
Firstly, as stated in the course of the hearing, the Court referred the parties to the Full Court decision in Sigley v Evor.[5] In that case the Full Court referred, at [128] – [129], amongst other things, to parenting matters still coming within the general ambit of what are known as discretionary judgments and the principles that should be recalled.
[5] Sigley v Evor (2011) 44 Fam LR 439.
Secondly, after noting (at [131] – 134]), comments from other decisions regarding what matters are to be taken into account in relation to what is a “meaningful relationship” under the Act, at [135] and [182], the Full Court referred to Kay J's decision in Godfrey & Sanders where his Honour observed, at [33] (emphasis added):[6]
The Act sets out in section 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[6] Godfrey & Sanders [2007] FamCA 102.
His Honour went on, in [36], to state (emphasis added):
It seems to me that the final conclusion reached by the court that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the court. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal one.
At [182] and [183] in Sigley v Evor, the Court went on to comment, on the facts of the case there under discussion, saying that the child already has a meaningful relationship with the Father. In circumstances where there were other considerations that had to be taken into account, it had to be remembered that a meaningful relationship does not mean an optimal one, again referring to Kay J in Godfrey v Sanders.
The Court went on to note in that case that, given that the Father did not seek equal or substantial and significant time with the child, there was no reason, on the evidence, why a meaningful relationship between the Father and the child could not be maintained if the child resided with his primary carer in North Queensland.
The final decision to note is one that was brought to the attention of the parties in this matter prior to the hearing which, to the Court's knowledge, is the most recent Full Court decision in relation to interim relocation.[7] In Franklyn, amongst other things, the Full Court said, at [27]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children.
There was then a brief reference, still at [27], to the High Court decision in AMS v AIF, with the Full Court commenting:[8]
The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[7] Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”).
[8] AMS v AIF (1999) 199 CLR 160.
The Court went on, at [28], to state that:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act. Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests.
On the facts in Franklyn, the Court noted, at [41], that the Mother’s evidence on the issue of the practicability of her relocating back to New South Wales was encompassed in what was described as the unpredictable, short‑term rental accommodation afforded to her in central west New South Wales by a public housing organisation called L Group. There was also, in the Court’s view, the related matter of the instability created by the frequency of her residential moves in that area and the relative unavailability of in‑town accommodation.
In that case, accepting that every matter must turn on its facts, the Court found that the prevention of the Mother being able to move on an interim basis should be overturned. The appeal was allowed.
Consideration & disposition
In interim matters, the Court is unable to make any findings where, as here, many of the factual matters are in dispute. Accepting and in the light of this, I note the following matters.
It is important to note [again], as set out in the ICL's submissions and confirmed and clarified in her oral submissions, that the views of the children, as recorded in paragraphs 10 and 11 of her submissions, were more refined and less direct than as recorded in those paragraphs. This is to say that the children were not asked directly about whether or not they believed they would be able to maintain their current relationship with the Father if they moved to Town B. Couched in such a way, in my view no child, especially children of the age in question here, could properly or reasonably answer such a question. As I have already noted, the children’s “views” recorded by the ICL (and for the purposes of s.60CC(3)(a)), came via a more refined series of questions and queries. I take, therefore, the views expressed in paragraph 11 of the ICL's submissions as being more of a summary, especially having regard to the ages of the children. At their highest, their “views”, such as they are, cannot be given undue weight.
Following sequentially through the considerations in s.60CC(3), I note somewhat summarily the following – but referring only to matters that are directly relevant to the current proceeding.
The evidence confirms that the relationship of the children with each parent is sound. This is taking due account of a range of issues raised by the Mother (and acknowledged by the Father) about his excessive drinking, among other things. Indeed, the perhaps almost infamous “face-drawing” by the children of the apparently comatose/unresponsive Father is a significant pointer of the strong relationship. The Court may reasonably infer that the children would not have undertaken the exercise of drawing on the Father’s face, and sending a photograph of their work to the Mother, if they feared any retribution. Indeed, the drawing and accompanying photograph, and the Father’s “condition”, were never raised or challenged by him.
On the Mother’s evidence, and somewhat confirmed by the Father in his, he has not been involved in the children’s schooling and other non-school activities. However, he says that he will be in the future. Given that X is now in Year 7, one would hope that not too much more time goes by without the Father attending to his parental responsibilities, particularly regarding the children’s school and other activities.[9] His sometimes lack of attention to the children whilst they are in his care – again see the children’s drawing on his face while ether asleep or passed out (the cause/causes of his apparently comatose state would also warrant some attention) – would also seem to require some considered attention.
[9] Generally, these brief comments have some reference and application to the considerations in s.60CC(3)(c), (ca), (f) and (i).
The issues of distance and travel (s.60CC(3)(d) and (e)) earlier referred to, and the impact of those on the children’s relationship with the Father, perhaps loom largest among the considerations. Certainly, given the consent Orders in October 2019, the actual “time with” arrangements now operating, and as proposed by the Mother, will remain quite similar – except for the one overnight in the “off week.”
Having regard to the principles articulated by Kay J in Godfrey & Sanders, endorsed by the Full Court in Sigley v Evor, both cases noted earlier in these reasons, about the proper distinction between a meaningful relationship required under the Act, on the one hand, and an optimal relationship, on the other, in my view, the evidence strongly supports the children having, and continuing to have, a strong relationship with their Father even if they were to move to Town B.
I simply repeat that travel over large distances will be an issue with a move to Town B. The Mother’s proposed orders for the time with the Father to move from each alternate weekend to every third weekend would somewhat alleviate this issue. Likewise, perhaps some extra school holiday time will assist, as will regular use of things like Facetime between visits.
Conclusion
In substance, I agree with the submissions of the Mother and the ICL that the Mother should be able to relocate from Town A to Town B at the earliest practicable time. With some slight variation, the Orders sought by the Mother should be made and are, in my view, in the children’s best interests.
In addition to the principles already outlined, I simply note summarily the further legal considerations:
a)No single factor is dispositive of decisions regarding “best interests” considerations in cases that involve relocation (AMS v AIF at [143] (Kirby J);
b)The best interests of the child remain the paramount consideration (Franklyn at [27] – [28]);
c)Freedom of movement of parents is a significant priority (AMS v AIF at [145] (Kirby J); Franklyn at [28]);
d)A parent who seeks to relocate need not establish “compelling reasons” for such a move (AMS v AIF at [47] (Gleeson CJ, McHugh and Gummow), at [92] (Gaudron J), and at [209] (Hayne J);
e)Modern means of communication may be a relevant factor (AMS v AIF at [147]; Godfrey & Sanders at [33] and [36]).
Summarised, in the light of the evidence available to the Court, and in the light of the principles set out earlier in these reasons, my reasons for permitting the Mother’s relocation with the children on an interim basis are:
a)The Mother’s living situation is precarious in Town A, primarily in relation to her current residence that is being sold;
b)The evidence from her lawyer indicates (I do not put it any higher) that there is a larger number of suitable houses available for rent in Town B than in Town A (the Mother has indicated that she and her new Husband intend to purchase a house in Town B);
c)The Mother’s job situation in Town A is somewhat more precarious, having resigned (and/or on the Father’s evidence, she would have been sacked) from her previous employment;
d)The Mother’s evidence, confirmed by a significant number of SMS messages from the Father, is that her employment situation and opportunities were at risk of being compromised by the Father’s actions in seeking to undermine (or worse) her “name”. It is unclear whether the Father’s range of friends/contacts in Town A extended beyond his previous place of employment, which may (or may not) potentially compromise further the Mother’s employment prospects in Town A;
e)The Mother’s evidence, limited as it was in relation to this point, confirmed that her Husband has employment in Town B;
f)The Mother’s evidence, somewhat challenged by the Father, was that she has greater employment opportunities in Town B;
g)The children clearly have a good and strong relationship with both parents;
h)The Mother proposes a “time with” arrangement for the children and the Father that has only minor differences to the consent Orders made in October 2019;
i)The burden of the significant travel on the children will be ameliorated as far as possible by (i) reducing the time with the Father to every third weekend rather than each alternate weekend, (ii) extra time with him during the school holidays, and (iii) liberal use of Facetime and similar electronic means.
In my view, the Mother’s evidence, in the light of the principles outlined, bring it within the parameters of what Boland J referred to in Morgan v Miles. In my view, the circumstances take it out of the so-called usual course of waiting until a final hearing to determine the Application to relocate. The Mother had flagged a long time ago her desire to relocate to Town B. More recent circumstances relating to her housing situation with the children, and her employment circumstances, both in Town A, in my view, bring the matter readily within the requirement that it be decided on an interim basis in the Mother’s favour. In my view, accepting that every case is “fact specific”, the present matter is supported by the Full Court decision in Franklyn.
I note also the Mother's Counsel's submissions to the effect that there would be very little direct impact upon the children as a result of a move to Town B. This is to say that, due to the current health environment, they would still be attending Town A School for the foreseeable future until health restrictions are lifted or reduced.
The only variation to the Mother's Orders that I would propose is that, for the first two months after the making of these Orders, accepting that there will be significant travel involved, the current orders remain in place regarding the frequency of the children’s time with the Father. That is, they spend time with him each alternate weekend. The one overnight in the off‑week, obviously, cannot continue. It should, however, continue until the Mother, her Husband and the children move to Town B. However, after two months following the move to Town B, it should revert to the Orders proposed by the Mother, namely, every third weekend. The practical proposal put orally by the Mother in relation to changeover should apply.
The other Orders can be made by consent, such as equal shared parental responsibility. Given the distances and travel time involved, the requirements of s.65DAA have no application.
Finally, given the Court’s determination that permits the Mother and the children to relocate to Town B, the most practical place for the matter to be hereafter determined will be in Dubbo. Accordingly, the matter will transferred to the Dubbo circuit.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 21 May 2020
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