SALISBURY & HUTCHINS
[2009] FMCAfam 978
•17 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALISBURY & HUTCHINS | [2009] FMCAfam 978 |
| FAMILY LAW – Child aged 3 – interim parenting arrangements – unilateral relocation – mother has moved child’s place of residence from Adelaide to [P] – father opposed to move – equal shard parental responsibility – whether relocation principles apply given the extent of the move sought to be legitimised – best interests – consideration of section 60CC factors. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 AMS v AIF (1999) FLC 92-852 |
| Applicant: | MR SALISBURY |
| Respondent: | MS HUTCHINS |
| File Number: | ADC 3241 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 11 September 2009 |
| Date of Last Submission: | 11 September 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 17 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Georgiadis Lawyers |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Spencer Gulf Law |
ORDERS
The mother return the child [X] born [in] 2006 (hereinafter referred to as “the child”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 25 September 2009.
UNTIL FURTHER OR OTHER ORDER
The parties have equal shared parental responsibility for the child.
In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the child live with the mother and spend time with the father as follows:
(a)On alternate weekends commencing 26 September 2009 from 10:00am Saturday until 6:00pm Sunday (or 6:00pm Monday in the event that Monday is a public holiday); and
(b)every second Sunday commencing 3 October 2009 from 10:00am to 5:30pm;
(c)At any other times and on any other occasions as agreed between the parties.
The parties exchange the child at a location to be agreed between them but failing agreement at the McDonald’s Restaurant on the corner of [address omitted].
In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but, in any event, the child spend alternate weekends until the final determination of this matter with the mother in [P] between 10:00am Saturday until 4:00pm Sunday.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the court and officers of the Australian Federal Police to locate the child and deliver him to the father.
An injunction issue and each party be restrained from changing the child’s place of residence to one outside the municipal area of Adelaide without the written consent of the other.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 23 October 2009 at 3:30pm, to discuss other arrangements for school holidays and special occasions, particularly Christmas, and the care, welfare and development of the child [X] born [in] 2006 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Pursuant to section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released at least six (6) weeks prior to trial.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said child.
The matter is fixed for final hearing before Federal Magistrate Brown on 14 & 15 April 2010 at 10:00am NOTING 2 days allowed.
That further consideration of this matter is adjourned to 8 December 2009 at 9:30am for trial directions.
IT IS NOTED that publication of this judgment under the pseudonym Salisbury & Hutchins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3241 of 2009
| MR SALISBURY |
Applicant
And
| MS HUTCHINS |
Respondent
REASONS FOR JUDGMENT
Introduction
It is three hundred kilometres or a drive of around three hours between [P] and the northern suburbs of Adelaide. On any view, it is a significant distance and necessarily a significant drive, particularly for a child of three years of age.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives, both in terms of spending time with them and in respect of the making of important decisions regarding their children.[1]
[1] See Goode & Goode (2006) FLC93-286 at 80,901
One important decision potentially pertaining to a child is a change to that child’s living arrangements, which make it significantly more difficult for the child concerned to spend time with a parent [Family Law Act 1975 section 4].
Mr Salisbury “the father” and Ms Hutchins “the mother” are the parents of [X] born [in] 2006.
Mr Salisbury and Ms Hutchins have never been married. They began to live together in mid-2005 and separated in December of 2008. Since the parties separated, [X] has lived predominantly with his mother. She is not presently in the paid workforce. Mr Salisbury is an [occupation omitted].
Since the parties separated, [X] has spent the first weekend of each fortnight, from Saturday morning until Saturday afternoon, with his father, as well as every second Sunday from 10:00am to 5:30pm. As I understand matters, Mr Salisbury works a conventional Monday to Friday week.
Mr Salisbury has another child from an earlier relationship. He is [Y], who is aged eleven. [Y] lives with his mother in [suburb omitted]. [Y] sees his father on alternate weekends, to coincide with the weekend [X] spends with him. It is Mr Salisbury’s position that [X] and [Y] get on well. Ms Hutchins does not disagree.
From Mr Salisbury’s perspective, the Sundays he spends with [X] give the two valuable “one on one” time together. It is the mother’s evidence that [X] is more apprehensive about spending time with his father, if he knows [Y] will not be there.
Ms Hutchins also has children from an earlier relationship. They are [Z] and [S] aged eighteen and thirteen respectively. [Z] and [S] live with their father in [omitted].
On 1 August 2009, the mother moved, with [X], from [suburb omitted] in the northern suburbs of Adelaide, to [P]. The father continues to live in [suburb omitted], also in the northern suburbs of Adelaide.
The mother told the father of her wish to move to [P] on 19 July 2009, after [X] had spent the day with Mr Salisbury. At the time, he made it clear to her that he did not agree to [X] moving to live in [P].
The mother offered to drive [X] to Adelaide from [P], on alternate weekends, so he could continue to spend regular periods of time with his father. She did not commit to any such arrangement for the other Sunday of each fortnight. A few days later, Mr Salisbury made an appointment with his solicitor, who wrote a letter to Ms Hutchins on 28 July 2009.
The letter formally advised that Mr Salisbury objected to [X] living outside the suburbs of metropolitan Adelaide. It indicated that if
Ms Hutchins moved [X] outside of Adelaide, Mr Salisbury would bring urgent proceedings to compel the return of the child to Adelaide.
Because of the significance of the letter concerned, Mr Salisbury’s solicitor was anxious that it be brought directly to the attention of
Ms Hutchins. For this reason, it was arranged for the letter to be personally served upon her.
As such, there seems little doubt that the mother was aware of the father’s formal attitude to the issue of [X] moving to [P] on or about
29 July 2009. However, Ms Hutchins still elected to move on 1 August 2009.
Mr Salisbury commenced these proceedings on 18 August 2009. On both an interim and final basis, he seeks that the parties should have “equal shared parental responsibility” for [X]. He proposes that [X] should continue to live with the mother and spend time with him on alternate weekends from 10:00am Saturday until 5:00pm the following Sunday; and in the intervening week from 9:00am until 5:00pm on Sunday.
Mr Salisbury also seeks orders that [X] spend half of each school holiday period with him and for specified times on special occasions. Finally, he seeks a permanent injunction that Ms Hutchins be restrained from changing [X]’s place of residence from a location more than 30km away from his residential address.
Ms Hutchins responded to this application on the day scheduled for the first return of Mr Salisbury’s application, 11 September 2009. On both a final and interim basis, she seeks orders that would see [X] living with her, in [P]. She proposes that [X] spend time with his father on alternative weekends between 10:00am Saturday until 5:00pm Sunday, to coincide with the time Mr Salisbury spends with [Y].
Her response is silent as to how precisely [X] will travel between [P] and Adelaide. However, it is clearly her position that she would undertake the necessary driving involved. In addition, it would appear to be her position that she is open to considering [X] spending more time with his father in future, particularly in terms of a longer alternating weekend period.
Essentially, it is her case that her move of [X] to [P] will not have a significant qualitative effect on the nature of [X]’s relationship with his father, particularly as at this stage Mr Salisbury does not wish to spend time with him outside of weekends and school holidays.
Mr Salisbury does not agree. He is worried that his relationship with [X] will inevitably deteriorate, if [X] lives along way away from him. He is particularly worried about the loss of his individual time with [X]. More importantly, he considers that Ms Hutchins has not closely considered the implications of [X] having to travel such a long way to see him each second weekend.
Ms Hutchins is not in a strong financial position. She is in receipt of social security payments. In these circumstances, Mr Salisbury fears that she will not be able to keep her promise to fund [X]’s regular travel between [P] and Adelaide and inevitably, as time unfolds, the mother’s proposed arrangements will become more and more problematic, to the detriment of his relationship with [X].
Mr Salisbury does not believe Ms Hutchins has any pressing reason for wanting to live in [P]. Members of her immediate family live in the northern suburbs of Adelaide. Indeed, until recently, Ms Hutchins was living with her step-mother and father in Adelaide.
From Ms Hutchins’ perspective, the major motivation of her move is financial. In Adelaide, she was forced to board with family and friends. In [P], she can afford to rent a comfortable and large house.
Ms Hutchins deposes that she can live better and more cheaply in [P]. She also has friends and connections in the area and enjoys life in a country town more than life in the suburbs.
The parties’ relationship with one another is a poor one. For obvious reasons, it has not been improved by recent developments. It is Mr Salisbury’s perception that [X] has not coped well with the recent change in his arrangements.
Mr Salisbury is resentful at what he sees as Ms Hutchins’ high handed behaviour. For her part, Ms Hutchins is resentful that Mr Salisbury is attempting to tell her how and where she should lead her life, now that the parties are separated after what she sees as an unhappy relationship. Her position is summarised in the following extract from her affidavit:
“I am opposed to being required to return to live in a location in which I am miserable, particularly when the father has only had [X] in his care for one night per fortnight, for the whole time that we have been separated.”[2]
[2] See mother’s affidavit filed 11 September 2009 at paragraph 58
The father’s position can be summarised in this extract from his affidavit:
“I do not believe that [X] should be subjected to this amount of travelling on a fortnightly basis. I believe that as time goes on and as a result of the distance he is required to travel, [X] will see his weekends with me as a burden. I also don’t believe that the mother will, despite her current intentions, maintain the effort, to travel between [P] and Adelaide each alternate weekend.”[3]
[3] See father’ affidavit filed 18 August 2009 at paragraphs 39-40
These proceedings are designed to resolve this dispute between the parties at an interim or interlocutory stage. Necessarily, given the nature of the proceedings, the outcome is a provisional one, which is subject to possible change at final hearing.
The legal principles to be applied
The service of [X]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child has a meaningful relationship with both his parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
If the presumption of equal shared parental responsibility is applied, the court is then required to consider whether the child concerned should spend either equal periods of time with each parent or failing this “substantial and significant” periods of time with both parents [section 65DAA].
This emphasis on time is because of the importance the Family Law legislation places on parents being actively involved in their children’s lives, in both a quantitative and qualitative manner. That is parents are to be encouraged to be involved in their children’s schooling; sporting and recreational activities; their daily routines; as well as on special occasions; – so long as this level of involvement is commensurate with protecting the children from harm.
Necessarily such involvement has a temporal aspect to it. Not all the activities which are likely to be beneficial for a child to be engaged in with a parent can take place on weekends or in school holidays.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned [section 60CC] and secondly the arrangements are likely to be reasonably practicable to put into operation [section 65DAA].
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[4]
[4] See Campbell & Spalding (unreported) Full Court of the Family Court delivered 15 May 1998
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
In addition, necessarily, each case involving a proposal to remove a child from the particular location, in which he or she lives is different and, as such, requires an individual analysis and response. The tyranny of distance develops by degrees.[5]
[5] See B & B: Family Law Reform Act 1975 (1997) FLC92-755 at 84, 196
For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
It has been pointed out that it is artificial, in the extreme, to determine whether a case involves issues of relocation on the basis of distance alone. Rather, what is important is the consequences of the move or proposed move for any child affected by it.[6]
[6] See Morgan & Miles [2007] FamCA 1230 at paragraph 91
Not every move of a child must be regarded per se as a relocation case. Separated parents frequently move from suburb to suburb, within the metropolitan areas of Australia’s large cities. In addition, they may move from one provincial town, within a state, to another location within that state. The possible permutations are, for obvious reasons, endless.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned. For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[7] As Kay J pointed out in Godfrey v Saunders[8] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[7] See D and S V (2003) FLC 93-137 at 78, 280
[8] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of these types of cases. Accordingly, it may be incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wishes to relocate from being able to move with the children concerned.[9]
[9] U v U FLC 93-112
As the child’s best interests remain the paramount consideration, in the outcome of any relocation proposal, and as one of the components of a child’s best interests is the right to have a meaningful relationship with both of his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[10]
[10] see Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998
In D & SV,[11] the Full Court of the Family Court queried whether a relatively short proposed move should invoke the relocation principles. Invariably, where one parent wished to categorise a case as a relocation one it involved some attempt on the part of that parent to restrict the other parent’s freedom of movement. Accordingly, in such cases, the court urged caution about applying the relocation principles, particularly where there was not any greater dispute as to who of the parents concerned should be the residence providing parent.
[11] D & SV (2003) FLC93-137
In these types of cases, the Full Court indicated that it was usually preferable to consider how the children concerned might maintain their relationship with the other of their parents, rather than conduct an enquiry directed to determining whether the “residence” parent’s freedom of movement should be restricted.
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
In addition, the court needs to consider what are the implications for the child’s best interests, particularly in terms of the parenting relationship between the parties concerned, of either allowing or disallowing any particular relocation.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[12]
[12] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
The ultimate issue in this case, both at the interim and the final stage, is the best interest of [X]. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by the factors in s.60CC and the principles which underpin it.
Conclusions
Although the evidence before me, at this stage, is untested by cross-examination and is likely to have been hurriedly prepared, I think I am in a position to conclude that the parties’ post-separation parenting relationship is a poor and mistrustful one.
Both Mr Salisbury and Ms Hutchins concede that they do not communicate well. In addition, each has pointed to some evidence regarding [X]’s behaviour, which may indicate that he is discomforted by the level of acrimony existing between his parents.
In these circumstances, it seems to me to have been foolhardy, on
Ms Hutchins’ part, to have organised the move to [P] without
Mr Salisbury’s acquiescence. After Mr Salisbury’s letter of 29 July 2009, these current proceedings can hardly have come as any surprise to her.
Although I am not in a position to fully appraise the potential impact of a distance of three hundred kilometres upon [X], it seems to me that, given [X]’s age and likely level of development, such a distance will have significant consequences for his ([X]’s) ability to spend time with his father.
Accordingly, Ms Hutchins’ decision to move [X] to [P] seems to me to have the characteristics of a major long-term issue into which
Mr Salisbury was entitled to have some input, particularly some level of consultation which was more than the perfunctory indication of her intent, which he received from Ms Hutchins.
This is not a case involving allegations of family violence, neglect or abuse. Nor at first blush do there appear to be pressing reasons why it would not be in [X]’s best interests for his parents to have equal shared parental responsibility for him. Certainly, from Mr Salisbury’s point of view, I accept that he aspires to be as fully involved as possible in making important decisions pertaining to [X].
Accordingly, at this stage, I have reached the conclusion that the presumption of equal shared parental responsibility is not rebutted in this case.
Given the absence of issues pertaining to family violence, neglect and abuse in this case, the issue of the benefits which [X] is likely to derive from having a meaningful relationship with both his parents must be given pre-eminence.
[X] is just under three and a half years of age. Necessarily, he is far from developed in either an emotional or intellectual sense. As such, his relationship with his father is not fully formed. Accordingly, in my view, the relationship is likely to be more susceptible to possible deterioration as a result of [X] living a significant distance away from his father than would be the case if [X] was older, say a child in late primary school.
[X] and his father lived in the same household from the date of [X]’s birth until December of 2008. Since his parents separated, [X] has seen his father on each weekend, for varying periods of time. Accordingly, it would seem to be the case that [X] has a significant level of relationship with his father.
In addition, [X] has a close relationship with his older brother [Y]. Both parties attest that [X] looks forward to seeing and spending time with [Y]. The move has the potential to have future significance so far as [X]’s relationship with [Y] is concerned.
Ms Hutchins’ action in moving [X] to [P] demonstrates, in my view, a compromised ability to facilitate and encourage [X] to have a close and continuing relationship with his father. I am concerned that she has glibly underestimated the likely level of difficulty, for her, of travelling fortnightly between [P] and Adelaide.
I accept that Ms Hutchins has many close connections in Adelaide and, as such, has many reasons to travel to the city regularly, particularly given that her own mother is not currently very well. However, on any view, she is not in a strong financial position. As such, the cost of fuelling her vehicle to undertake the travel involved and the inevitable mechanical wear and tear upon it, are likely to constitute a considerable financial burden for her.
I acknowledge that, within the context of the overall size of continental Australia, a distance of three hundred kilometres is not a huge one. Certainly, it is a distance many parents in outback and remote Australia regularly drive.
In addition, separated parents, in the large and densely populated urban cities of Australia, such as Sydney and Melbourne, regularly spend much time negotiating crowded highways to collect and return children for “contact” weekends. Necessarily such parents and children see lengthy periods of time in the car as part and parcel of life.
As such, the mother’s proposal cannot be regarded as an outlandish one, particularly given that her reasons for wanting to move to [P] are not lacking in merit. I can understand the attractions of rural life for her, particularly that it will provide her, a single parent in receipt of social security payments, with comfortable and affordable housing.
However, the difficulty of the mother’s position is that she has solely engineered the current position. It cannot be said that the situation is without its potential pitfalls. Three hundred kilometres 300km is afterall three hundred kilometres. As such, in the short term, I am left with the uncomfortable feeling that Ms Hutchins has put her own individual preferences and needs before those of [X].
Necessarily, given [X]’s age and current level of development, his relationship with his father is fragile. As such, it is a relationship which is more susceptible to the vicissitudes of distance than that of a relationship between an older child with a distant parent. At this stage, it would seem self apparent that, in order to derive benefit from his paternal relationship, [X] needs frequent periods of “quality” time with his father.
In this sense, I do not necessarily accept that the mother’s proposal, which will see [X] seeing his father every alternate weekend, is not likely to result in a qualitative change in the relationship between the two.
In my view, the addition into the equation of [X] having to travel six hundred kilometres each fortnight and the absence of an intervening weekend visit does have the potential to change the quality of [X]’s paternal relationship.
Certainly, it is difficult to see that the mother’s proposal will lead to any significant incremental improvement in the quality of his paternal relationship over the next few years of [X]’s life.
The major difficulty with the mother’s position is that she has, in effect, presented both Mr Salisbury and the court with a fait accompli. As such, if the court grants her application, at the interim stage, the relocation aspect of the case will almost certainly be robbed of the close and delicate analysis, which the High Court has directed should be applied to relocation cases.[13]
[13] See AMS v AIF (1999) FLC 92-852
For obvious reasons, the more and more ensconced [X] becomes in [P], the more unpalatable it will become for the court to compel his return to Adelaide. As such, if the court accedes to Ms Hutchins’ position at this stage, a final hearing of the parties’ competing applications is likely to be rendered otiose. This would not appear to be in keeping with the High Court’s direction.
Given the importance of both parents being actively involved in their children’s lives and sharing responsibility for making decisions about them, in my view, the court must exercise considerable caution in respect of any action which occurs unilaterally or independently of the other parent concerned, particularly in respect of any decision to move a child away from the other parent concerned, which is likely to impact upon the quality and nature of a child’s relationship with the other of his or her parents.
In my view, there must be some compelling reason, pertaining to the child concerned’s welfare, which would enable the court to retrospectively legitimise such unilateral actions pertaining to where a child lives. I do not think that such circumstances exist in the current case.
In Morgan v Miles[14] Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…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, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spalding remain apt and relevant to determination of these cases.”
[14] Morgan v Miles [2007] FamCA 1230 at p.25
This is not a case, in my view, where there was any such emergency situation. Ms Hutchins was not fleeing an abusive or violent situation. She had accommodation for herself and [X] in Adelaide, albeit it was not of her first preference.
There is no issue in this case concerning Ms Hutchins losing an employment opportunity or the chance of long term personal happiness because a relationship in which she is involved will fail if she does not move.
The most compelling reason Ms Hutchins can mount for the maintenance of the current situation, pending trial, is that it will be personally and financially inconvenient for her to be compelled to return to live in Adelaide and she does not want to do so.
I accept that this is true and Ms Hutchins herself is not in a position where she can easily absorb the financial consequences of terminating a lease. However, Mr Salisbury indicated his attitude to the move quickly and unequivocally.
As such, it is difficult for Ms Hutchins to justify her position on these personal and financial grounds, when she herself paid no heed to the possible consequences of her actions so far as Mr Salisbury’s feelings were concerned, in the face of his vehement and obvious opposition to the move. The court must be careful not to condone precipitate and unilateral parenting decisions.
As I indicated to the parties during the hearing of the case, I regard the matter as being difficult and finely balanced. It is difficult because the distance between Adelaide and [P] is not so great that it would be impossible for [X] to maintain his relationship with his father through regular weekend and holiday contact, particularly if Mr Salisbury does not aspire to change the predominant residential arrangements for the child or to spend time with him during the week.
However, at the end of the day, I must bear in mind that these are interim proceedings. They are not intended to put in place final and long term arrangements for the care of any child concerned by them. As a consequence, I must be careful not to pre-empt the need for any final hearing by any order I make at this stage.
At both the interim and final stage, a consideration of [X]’s best interests remains the paramount or most important consideration. Necessarily the most important component of this exercise is a consideration of how best he may benefit from having a meaningful level of relationship with not one but both of his parents.
I accept that Ms Hutchins has been [X]’s pre-eminent carer for all of his life to date and, as such, is the most important figure in his life. However, Mr Salisbury is also highly significant to [X]. As such, I have reached the conclusion that the issue of how [X] may maintain a meaningful relationship with his father, in the context of his mother’s wish to move him to [P], is one which must be more closely examined, through the mechanisms provided by a final hearing.
In reaching this conclusion, I have considered the potential hazards to [X] which are likely to arise if his primary carer (his mother) feels unhappy and frustrated by her apprehension that she has been financially compromised and compelled to live in uncomfortable circumstances by the father.
However, these difficulties can be ameliorated by fixing the parties’ competing applications for final hearing as soon as is practicable. In addition, such an outcome will enable the court to authorise the compilation of a detailed assessment of [X]’s emotional and practical needs and the nature of his relationships with each of his parents and other significant others through the agency of a family report.
For all these reasons, I will make orders requiring [X] to be returned to live in the metropolitan area of Adelaide by 4:00pm on 25 September 2009. If Ms Hutchins elects to live in Adelaide, pending the trial of the matter [X] should continue to live predominantly with her and spend time with his father according to the arrangements which have been in place since the parties separated.
I have no authority to compel Ms Hutchins to live in any particular location against her will. If she elects personally not to live in Adelaide as an unavoidable consequence [X] must live with his father and arrangements will have to be made for him to spend time with his mother. I propose, in this eventuality, that [X] should spend time with his mother on alternate weekends, unless the parties agree otherwise.
The nature of these orders exposes the difficulties implicit in this case in stark relief. Ms Hutchins is likely to be resentful at being beholden to Mr Salisbury as to where she must live to parent [X], particularly when Mr Salisbury’s preference is to continue to work full-time in Adelaide and see [X] on weekends in his location of choice.
At this juncture, Mr Salisbury is not prepared to countenance any change in his personal circumstances, which would accommodate
Ms Hutchins’ aspirations to live in [P]. No doubt, he would resent any suggestion that he should change his work and living arrangements so that he can move closer to [P] in tandem with Ms Hutchins. He has no such qualms about potentially restricting Ms Hutchins’ living opportunities.
If, at this interim stage, Ms Hutchins declines to be personally confined within metropolitan Adelaide and is unwilling to give up her accommodation in [P], there must be questions arising regarding [X]’s best interests, in the short to medium term, as a result of the abrupt change in living arrangements from his mother’s to his father’s household, particularly as such an outcome does not appear to be
Mr Salisbury’s preferred one, given his employment situation.
Issues such as these create a perennial dilemma for the court. The dilemma arising where one parent has exercised parental authority for a child in circumstances where the ethos of the applicable legislation encourages parental consultation and the mutual exercise of such authority.
This is one such case. However, the dilemma was precipitated by the actions of Ms Hutchins. She took things into her own hands regarding where [X] should live. She hoped that Mr Salisbury would fall into line with what she had engineered. He was not willing to do so. If the court exceeds to Ms Hutchins’ position at this interim or provisional stage, Mr Salisbury is likely to be highly resentful and this resentment will drive the ongoing conflict between the parties, almost certainly to [X]’s detriment.
In my view, the service of [X]’s best interests dictate that the issue of the potential relocation of his predominant place of residence should be determined on a level playing field, on which neither parent has an advantage over the other.
The decision is likely to be a very significant one for [X], both now and for the remainder of his childhood. Ideally the issue should be determined through a process of consultation between his parents. Failing such a consultative agreement, it must be determined through the due process of the court.
Whether unwittingly or otherwise, Ms Hutchins’ actions, if ratified at this stage, are likely to pre-empt such a process of consultation or the required due process necessary to adjudicate disputes between parents and citizens. As such, Ms Hutchins’ actions were not, in my view, calculated to be in [X]’s best interests. Fundamentally, she did not approach the difficulty issue of relocation in the correct manner.
So that the decision can be properly made, particularly so that due consideration may be given to how [X] should benefit from having a meaningful relationship with both his parents, I consider it important that he return to live in the Adelaide area pending final hearing.
As that stage, given the uncertainty surrounding the parties’ parenting relationship, it is neither practicable nor likely to be in [X]’s best interests for him to live in either an equal time or substantial and significant time arrangement.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 17 September 2009