Saunders and Egerton
[2017] FCCA 58
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAUNDERS & EGERTON | [2017] FCCA 58 |
| Catchwords: FAMILY LAW – Relocation – young child – mother is unchallenged primary parent – application refused as not in child’s best interests – mother seeks specific injunction to prevent father from taking child in light plane – application refused. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3), 65DA, 65DAA |
| Cases cited: Paskandy v Paskandy (1999) FLC 92 – 878 Taylor v Barker (2007) 37 Fam LR 461 |
| Applicant: | MS SAUNDERS |
| Respondent: | MR EGERTON |
| File Number: | ADC 789 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 23, 24 & 25 November 2016 |
| Date of Last Submission: | 25 November 2016 |
| Delivered at: | Launceston |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Gibson |
| Solicitors for the Applicant: | Charmaine Gibson |
| Counsel for the Respondent: | Mr M Verney |
| Solicitors for the Respondent: | Rae & Partners |
ORDERS
That all extant Orders in respect of the child X born (omitted) 2012 be discharged.
That the parents have equal shared parental responsibility for X.
That X live with the mother in Tasmania and that the mother’s application to relocate X to South Australia be and is hereby refused.
That X’s time with the father and the issues of X and the mother being permitted to travel to South Australia for holidays be reserved for further submissions.
IT IS NOTED that publication of this judgment under the pseudonym Saunders & Egerton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
ADC 789 of 2016
| MS SAUNDERS |
Applicant
And
| MR EGERTON |
Respondent
REASONS FOR JUDGMENT
These are proceedings commenced by the mother in the Adelaide Registry of this Court on 8 March 2016 in respect of the parties’ one child, X born (omitted) 2012 (aged 4 years).
The mother proposes that X live with her and that she be permitted to relocate with X to live in South Australia. Given the mother’s concession that she would not relocate from Tasmania to South Australia without X then she is the unchallenged primary carer for X. The father opposes X's relocation.
Background
Both parents are 36 years of age. They commenced cohabitation in March 2011 when both were living in the Northern Territory. In October 2011 they relocated to live in Launceston, Tasmania. X was born on (omitted) 2012. The parties married on (omitted) 2015. They separated on the 28 or 29 of January 2016 when the mother discovered that the father had been conducting a relationship with another woman.
It seems that both parties instructed solicitors in the early days of February 2016 whereupon the father’s solicitors extracted a form of undertaking from the mother that she would not permanently remove X from Tasmania. The mother nevertheless left Tasmania for Adelaide with X on 24 February 2016 in circumstances which she has attempted to justify in affidavits but which are now of little relevance to the future care arrangements for X.
The mother commenced proceedings in the Adelaide Registry of this Court on 8 March 2016. On 18 April 2016 my colleague Judge Heffernan ordered that X be returned to Tasmania. Subsequently His Honour ordered on 22 April 2016 that X live in the interim with the mother in Tasmania and spend time with the father on a rather convoluted 10 week cycle to fit with the father's employment. The proceedings were transferred to the Launceston Registry of this Court.
The mother is in employment with (employer omitted).
The father is employed as a (occupation omitted) at (employer omitted). He works on a rotating ten-week roster which includes both day and night shifts. He variously has block periods of four days off between a period of four night shifts and four days shifts and then one period of six days off in each ten week cycle.
X is currently enrolled at the Early Learning program at (omitted) College, (omitted).
The mother’s extended family live in South Australia. The evidence suggests ongoing regular visits between the mother (and the father) and the family in South Australia and reciprocated in Tasmania.
The father's extended family live in the general (omitted) area. The maternal grandmother, in particular, has had an ongoing weekly care role with X.
The parties have finalised a property settlement. In the interim, the father vacated the former matrimonial home at (omitted) in favour of the mother and X. He, however, will retain that property pursuant to final orders with a right of return to the home from 30 days after my judgment in these proceedings.
The evidence suggests that the father has terminated his relationship with the woman which was the catalyst of the separation. There is no evidence that the mother has re-partnered.
The Mother’s Proposal
The mother proposes that she and X reside in Adelaide. She says that she has been accepted into a (omitted) course at the University of South Australia and that this qualification will ultimately financially benefit herself and X. At [14] of her trial affidavit of 28 October 2016, the mother says:
Residing in Adelaide would allow me the opportunity to complete my studies a lot sooner than I am able to while residing in Tasmania, as I am only able to undertake one unit (subject) at a time whilst living in Tasmania.
The mother's trial affidavit, without providing any particulars, claims that she would have access to a greater range of job opportunities in South Australia. She said that she would expect higher paying roles which would allow her to provide X with 'further opportunities for social and extracurricular activities'.
The mother says that X has been accepted to attend (omitted) College which provides a particular approach to education and which is a private (religion omitted) school.
At [19] of her trial affidavit the mother says:
I believe that Adelaide is a wonderful place to raise a child, particularly as there is an abundance of social and extra – curricular activities available throughout the year, and the cost of living is very affordable'.
The mother proposes a generous contact regime for X with the father should she be permitted to relocate to South Australia. She suggests that the father travel to South Australia during his block periods off from work. She says that she will contribute half of the return air flights for the father she says that she will vacate her own home in favour of the father during his visits. She says that she will provide him with a motor vehicle and the full facilities of her home and her kitchen including food. The mother also proposes school holiday time for X in Tasmania again with her to provide one half of the airfares.
The mother says that she has employment immediately available for her in Adelaide. She says that she will be able to pursue her studies more productively with the assistance of her family to care for X.
The mother says that she will have the actual and emotional support of her family in South Australia such not being available to her in Tasmania where she has lived since only 2011 and has limited friendship and support networks.
Significantly, at the end of the evidence and in her counsel's final address, the mother proposed (in the alternative) that she be permitted to relocate with X to South Australia but that the relocation not occur for one year which I assume would coincide with X commencing full-time school in South Australia in January 2018.
The Father’s Case
The father says that the mother's proposal for his time with X in South Australia is unrealistic and not financially viable for either party. His affidavit material particularises his income and expenditure and he says that he would be unable to meet the costs associated with the mother's proposal.
The father says that, in any event, the mother’s bona fides in respect of her proposal are dubious. He says that she has previously unilaterally relocated X to South Australia thereby placing the child's relationship with him and his extended family in jeopardy. He says that she has since attempted to reduce X’s time with him. Generally he says that there is evidence before the Court that the mother and her extended family, in particular her father, could not be relied upon to support a relationship of some distance between he and X.
The father says that X showed some behavioural and emotional difficulties upon her Court ordered return to Tasmania and following the mother’s unilateral relocation to South Australia.
The father says that X has a close relationship with his own extended family, including regular care by his parents on a weekly basis, such that would be placed in jeopardy on the mother's proposal.
The father argues that the mother can pursue her tertiary study ambitions in Tasmania. He says that she has comparable and ongoing current employment in Tasmania. He says that X can be provided with adequate education opportunities in Tasmania.
Further Issues
There is a further specific issue remaining alive between the parties. The mother seeks an injunction that the father not fly with X other than on a commercial aircraft. The father has a limited light aeroplane licence. He argues that X should be able to enjoy his recreational flying activities with him.
Each of the parties seeks an order for equal shared parental responsibility in respect of X.
The Evidence
Both parties provided affidavits and were extensively cross-examined. Their evidence in Court was consistent with that in their later affidavits. Both presented as good and honest witnesses whilst keen to shore up their own cases. Each was, however, able to acknowledge the qualities of the other as a parent of X.
My observations of the mother in the witness box were of a strong and assertive personality who is undoubtedly capable as X's primary parent in and within her own life.
The father was less assertive with an easy going attitude and personality. It is clear that he acknowledges the mother as X's primary parent and, regardless of his work commitments, seemed willing to delegate this role to the mother. He acknowledged his reliance upon his own mother and family for physical support in his care of X and I gleaned also in an emotional sense.
The father’s mother gave evidence. She articulated her own strong relationship with X. She was understandably partisan of the father’s case but I did not glean any undue hostility towards the mother as suggested in the mother’s affidavit material. The maternal grandmother presented as one devoted to X and willing to continue her assistance of both parents in the care of X if required.
Family Report
The Court has the great assistance of a comprehensive Family Report prepared by Family Consultant, Ms Y and dated 8 November 2016. The report was prepared from interviews and observations conducted on 26 October 2016. Both parties were interviewed and observed with X. In addition, X was seen with the maternal grandparents, Ms S and Mr W. She was also observed with the paternal grandparents.
Ms Y at [14] notes the mother’s dee to move to South Australia on the following bases:
a)That she will have better career opportunities;
b)That X would be advantaged by being in the care of her parents rather than alternative care;
c)That the mother will be happier with family support as well as being able to reconnect with friends; and
d)That there will be a wider range of suitable activities for X to pursue in a place with a larger population than Launceston.
At [18] the mother is reported as criticising the father’s lack of 'prioritisation' of X post and pre separation and that he delegates care to the paternal grandmother.
At [20] the mother is reported as seeking a change to X's routine and time with the father, should the mother not be permitted to relocate with X and so that X has a more consistent weekly routine and apparently regardless of the father’s work arrangements.
Ms Y observes the father as presenting 'as a jovial, easy-going man' which are observations consistent with my own.
At [22] the father reports his concerns that his relationship with X and that of his parents with the child would be negatively impacted by a move to South Australia. He also discloses X's speech problems observed only on her return from South Australia. He reports his own financial constraints in respect of the mother’s time-with proposal should she relocate.
At [28] Ms Y reports on her interviews with the paternal grandparents as follows:
The maternal grandparents, Ms S and Mr W fully supported the report of their daughter, they gave examples of Mr Egerton's alleged behaviour that they believed suggested he is self-centred and controlling. Mr W believes that their daughter was a victim of Mr Egerton’s abusive behaviour. He used much stronger terms that (sic) his daughter to describe the alleged self-severing behaviour and negative personality characteristics of Mr Egerton. This is of concern in that Mr W may negatively influence his daughter about supporting X's relationship with Mr Egerton. The maternal grandparents reported that it is not practical for them to relocate to Launceston given that they have a grandson living in Adelaide and there are other relatives and support network are primarily in South Australia.
At [27] Ms Y reports on her interview with the paternal grandparents, Ms A and Mr G, as them being proactive in trying to ensure they have an amicable relationship with Ms Saunders for the benefit of X.
At [38]-[39] Ms Y concludes in respect of the grandparents:
It is a credit to all the adults that they behaved amicably towards each other on the assessment. The attendance of the maternal grandparents from Adelaide is a testament of their commitment to X and their daughter. The attendance of the paternal grandparents is consistent with their long-term support of X. … X has benefited from having the love and attention of her two sets of grandparents and of each parent growing up.
Ms Y notes that both parents and X all reported the mother and X travelling to Adelaide to spend time with the maternal grandparents about three or four times each year.
In her evaluation at [40] Ms Y observes:
Observation of X with each parent (and their respective parents) was consistent with the reported information about the parenting strengths of each parent. Ms Saunders has a calmer and more educative approach to parenting compared to the more boisterous parenting approach of Mr Egerton. The information supplied by Ms Saunders suggests she undertakes the primary role, and Mrs (sic) Egerton a secondary role, of supporting X to manage her varied routine of spending time with her father. The information of Mrs Egerton suggests she has a significant role in caring for X during the time that she is with her father. It seems possible that Ms Saunders has overstated Mrs (sic) Egerton's lack of involvement in parenting tasks and possible that Mr Egerton has overestimated his contribution.
Consistent with the evidence before me, Ms Y notes at [42]:
There does not appear to be any current safety concerns that are likely to impact on the future parenting arrangements. Ms Saunders does not apparently need to relocate to Adelaide for safety reasons, as she may have believed was necessary in February this year. The parents have demonstrated the ability to support X's relationship with the other parent under the terms of the current order.
In her report Ms Y notes the difficulties for a child growing up geographically apart from a parent and the consequent lack of involvement in educational, social and leisure pursuits of the child.
At [43] of her report Ms Y comments on the mother’s proposals for X's time with the father as follows:
While Ms Saunders may have good intentions, the frequency of visits proposed by her seems unrealistic. The arrangements as proposed by Ms Saunders's (sic) is in entirely untested; it become (sic) unpalatable to Ms Saunders that her ex-husband stays in her new home, there are potentially may (sic) unforeseen barriers to this working.
Whilst not providing any unequivocal recommendation as to the proposed relocation of X, Ms Y concludes at [45]:
The current arrangement of X living primarily with her mother and spending regular time with her father is the most suitable arrangement for her. X has the benefit of having the predominant experience of her mother's undisputed adept parenting ability and the frequent experience of her father’s more playful parenting style. Holiday time between X and her father would be compatible with his spirited parenting style, albeit X will benefit more if her father continues to become a more involved father.
At [47] Ms Y opines:
Ms Saunders capably meeting her parenting responsibilities and she has employment, albeit she believes she would have better career opportunities in South Australia. It would be speculative to proffer an opinion about the extent to which the parenting ability of Ms Saunders might be enhanced should her dee to relocate to Adelaide be realised.
At [48] Ms Y concludes that X has the developmental capacity to maintain a relationship with her father from Adelaide but with 'the crucial support of her mother'. She notes the risk that Ms Saunders may not adequately promote X's relationship with her father from a distance and particularly if she is influenced by her own father’s strong negative views of Mr Egerton.
Relevant Law
Significantly, the guiding legislation being the Family Law Act1975 (“the Act”) is itself silent as to the concept of 'relocation'. It follows that a relocation of a child is neither expressly prohibited by law nor is there a presumption against it. That is, any proposal by a parent to relocate a child is but one of a plethora of factors to be considered by judges in arriving at orders which, on balance, the Courts consider to be in the best interests of the child. In this sense, the child's best interests are the paramount consideration for the Court, although not the sole consideration.[1]
[1] s.60CA
Full Courts of the Family Court firstly in Paskandy v Paskandy[2] and later after significant amendments to the Act, in Taylor v Barker[3] have emphasised that there can be no dissection of a parenting matter into discrete issues of, firstly, who the child shall live with and then, secondly, a further or separate issue as to whether a relocation should be 'permitted'. The Court in Taylor v Barker (supra) observed:
In our view, his honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DA at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[2] (1999) FLC 92 - 878
[3] (2007) 37 Fam LR 461
Section 60B of the Act sets out the objects and principles underlining those objects in respect of children's matters. Such provides the framework for determining the best interests of children. That section provides:
1.The objects of this part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c) ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child's best interest):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right to spend time on a regular basis with and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
There is a presumption at s61DA of the Act that parents have equal shared parental responsibility for their children. 'Parental responsibility' is defined as “…or the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” In practical terms that responsibility normally manifests in the making of long-term and important decisions for children in respect of issues such as education, religion, medical procedure and the like as distinct from the day to day decisions of care for the children.
The presumption of equal shared parental responsibility does not apply if there is sufficient evidence before the Court to find that a parent or a person living with the parent has engaged in family violence within the broad definition in the Act. Alternatively, the presumption can be rebutted by evidence that such an order would not be in the best interests of the child. In the matter now before me, both parties seek an order for an equal shared parental responsibility. The mother in her earlier affidavit material and in the interview with the Family Reporter made assertions consistent with the broad definition of family violence. Nevertheless, I accept that her case is not based, or based substantially, on such allegations and note again the comments of the Family Reporter in this respect.
If the Court is to make an order for equal shared parental responsibility then a statutory and intellectual course of consideration in respect of the child’s living and parenting arrangements necessarily flows. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child's best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the child spending 'substantial and significant time' with each parent is both in the child's best interests and reasonably practicable.
Substantial and significant time as defined in the Act as:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays;
(ii)days that do not fall on weekends and holidays;
(b)the time the child spends with the parent that allows the parent to be involved in:
(i)the child's daily routine;
(ii)occasions and events that are of particular significance to the child;
(iii)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parents.
Matters involving a proposed relocation of a child, therefore, emphasise the dual requirements of parenting orders to be both in a child's best interests and 'reasonably practicable’.[4] Obviously, the geographical constraints presented by most relocations prevent any practical operation of an 'equal time' or 'substantial and significant time' arrangement for a child with the remaining parent.
[4] MRR & GRR [2010] 240 CLR 461
The High Court in MRR & GRR (supra) at [15] observed:
Section 65DA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is deemed that there be equal time spent by the child with each parent. The presumption in s65DA(1) is not determinative of the questions arising under s65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in (Mt Isa), (the trial judge) was obliged to consider the circumstances of the parents, more particularly those of the mother, in determining whether equal parenting was reasonably practicable.
In the matter before me, by reason of her proposed relocation, the mother argues for a more traditional time for X and the father being in Tasmania during school holidays albeit with the father also spending time in South Australia. The father's proposal is based on his complex work roster but fits within the definition of 'substantial and significant time'.
Given the lack of the statutory assistance in respect of the notion of ‘relocation', superior Courts have historically endeavoured to extract a set of principles to assist trial judges dealing with children's matters involving a proposed relocation. It seems clear that those principles have survived the significant amendments to the Act made in 2006 and can be summarised as follows:
·Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s60CC of the Act but also within the context of the s65DAA considerations of equal time or 'substantial and significant time' and 'reasonable practicability';
·The child's best interests remain the paramount but not the sole consideration;
·Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
·An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find a parenting order involving the relocation of a child is in that child's best interests;
·The child's best interests must be weighed and balanced with the 'right' of a parent to 'freedom of movement' but such right must ultimately defer to the child's best interest;
·The Court to must consider the advantages and disadvantages of each of the parties’ proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.
The best interests of the child are determined on a weighing and balancing of the probative evidence and the parties’ proposals with reference to the mandatory considerations in ss.60CC(2) and (3) of the Act. Those considerations are divided into 'primary' and 'additional' considerations. There is however, no hierarchical distinction or prioritisation of those considerations and each matter sits on its own particular factual platform. The 'primary considerations’ are:[5]
(a)the benefit to the child having a meaningful relationship with both of the child's parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[5] s.60CC(2)(a) & (b)
These two primary considerations are often referred to as the 'twin pillars'. The additional considerations are, in my view, are of a more pragmatic and case-by-case based import.
Section 60CC considerations
S60CC(2)(a) - The benefit to the child of having a meaningful relationship with both parents
The evidence of both parents and supported by their witnesses and the Family Reporter is that X currently enjoys a close, bonded, successful and meaningful relationship with both her parents. X is just four years of age and the issue for the Court and as argued by the father is that the change in the nature of the relationship between X and her father as proposed by the mother’s anticipated relocation might damage that relationship?
The experts are almost unanimous in suggesting that her frequency of contact is crucial in both establishing and maintaining relationships with young children for their parents. That is, older children might more easily be able to endure longer gaps in direct contact whilst maintaining relationships than can younger children. There is also an issue as to whether the quality of a relationship of direct contact can be substituted or maintained by the use of social media such as telephone, email and Skype?
Significantly, however, and whilst this consideration is a 'primary one' it is not itself determinative of the dispute as the Full Court in Champness & Hanson[6] observed when commenting:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a 'meaningful relationship' with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child's best interests. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider 'the benefit to the child' of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed, along with all of the other relevant factors.
S60CC(2)(b) - The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[6] [2009] FamCA FC 96
As mentioned above, the definition of family violence/abuse in the Act is a broad one. Nevertheless, the trial before me proceeded without emphasis on matters of family violence. I note only that whilst the paternal grandfather is understandably partisan to his daughter’s situation against the background to the separation of these parents, it would be considered contrary to X’s interests and perhaps abusive behaviour if he was to convey his personal sentiments to his granddaughter. I expect, however, armed with the insightful comments of the Family Reporter, the mother would protect X from any such behaviour.
S60CC(3)(a) – any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give the child's views
X is just four years of age and any views and preferences as to her living arrangements as conveyed through her parents should and will be given little or no weight as she would not reasonably be expected to be able to rationalise her own best interests in such complex matters.
S60CC(3)(b) - the nature of the relationship of the child each of the child's parents and that of any other persons (including any grandparent or other relative of the child)
Ms Y identifies the differences in the nature of the relationships for X with each of her parents. The evidence before me confirmed those observations. The mother is and has been undoubtedly the primary parent. X's attachment to her mother is consequently in those terms. The father, by reason of his complex work commitments or otherwise, has taken a different but no less significant role with X.
The mother’s proposed relocation would impact on X's relationship with both of her parents. Her relationship with her mother would not have the current benefit of the punctuations of spending time with her father. That is, the differences in the nature of the parent/child relationship would be accentuated because of the inevitable gaps in time for X in seeing her father. Further, the father and X would lose any spontaneity and flexibility in their relationship. The father’s ability to participate in school and extracurricular activities would be limited, if not lost. Similarly, X has thus far enjoyed a high-frequency in her relationship with her maternal grandparents. The Family Report suggests some benefit for her in this relationship. Nevertheless, that same Family Report identifies a close relationship for X with her maternal grandparents despite far less frequency in direct contact. The mother's proposal would be likely to simply substitute the maternal grandparents for the paternal grandparents in the regular caring role. It follows that X would be likely to maintain her current familiar and successful relationship with the paternal grandparents should she relocate to Adelaide.
S60CC(3)(c) - the extent to which each of the child's parents is taken, or failed to take, the opportunity to participate in making decisions about major long – term issues in relation to the child and to spend time and communicate with the child and the extent to which each of the child's parents has fulfilled, or failed to fulfil, the obligations to maintain the child
The evidence suggests that the differing personalities of these parents have seen them evolve into different roles in respect of X. The mother has taken a more primary role. The father has work commitments and a personality which combine to see him delegate this role to the mother. This is, however, not a criticism of the father in that he has continued to spend time with X and she has benefited from that time. Conversely, the mother's actions in February 2016 show a capacity to make unilateral decisions for X which could be seen as a lack of insight and respect for the father's role in his relationship with X. This evidence fits with the observation of the Family Reporter at [40] that the mother takes a more educative approach to parenting whilst Mr Egerton is perhaps more boisterous and fun loving. The Family Reporter does opine, however, at [41]:
In any event, Ms Saunders continues to be X's primary carer. It seems likely that Mr Egerton, with the support of his mother, is meeting X's physical and emotional needs in his care.
There has been a financial dispute between the parents but with the making of final property orders I am confident that their financial issues and obligations in respect of X will become less competitive and more co-operative.
S60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents or any other person (including grandparent or other relative), with whom she has been living.
X has lived primarily with the mother. Her time with her father has been complicated by his work roster but, on the evidence before me, has been frequent. X has also enjoyed frequent and regular time with the maternal grandparents.
The changes proposed by the mother would undoubtedly be significant for a child of X's young age and in respect of the relationships with her father and paternal family. Put simply, and despite the mother’s generous proposals, time would become less frequent. It would be complicated by travel logistics. It is problematic, at the very least, as to whether these difficulties can be adequately mitigated by the mother’s proposals for the father to travel to Adelaide and/or use of media to maintain contact. Whilst the mother is undoubtedly X's primary parent, the benefits of X’s relationship with her father should not be underestimated simply by reason of the different role he assumes and his different personality. The evidence makes it clear that X enjoys her father's company and would be likely to enjoy and benefit from his attendance at future school, sporting or extracurricular activities. Opportunities for spontaneous interaction and flexible arrangements would inevitably be lost by the child's relocation to Adelaide with the father remaining in Tasmania.
S60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The practicalities of the mother’s proposals are in issue here as are the parents’ ability to finance any reasonable travel arrangements even if offered with the best of intentions. The father earns a reasonable income but particularised his expenditure and disposable income in his affidavit material without substantial or successful challenge as to his financial limitations. He says that he cannot afford frequent visits to Adelaide and certainly not in accordance with the mother’s proposals. Similarly, the mother is confident that she will obtain employment in South Australia but her proposed contributions towards X and the father’s travel would inevitably eventually take a lesser priority over the necessary expenses of day-to-day living for herself and X and the financial impost on her would be challenging at the very least. On the evidence before me, neither party is currently in a strong or financial position or could be considered 'wealthy' with any substantial residual disposable income after expenses.
The mother's proposal for the father to spend time with X in Adelaide is generous but, I fear, made without informed or considered fore-thought. She offers her house, her car and the contents of her refrigerator for frequent visits by the father to Adelaide whereupon she would vacate her home. Whilst superficially attractive, I am dubious as to the sustainability of such a proposal into the future given the expected intervention of the usual vicissitudes of life.
Conversely, the evidence before me suggests that the mother has been able to enjoy at least three or four visits to Adelaide each year with X which on her own evidence have allowed X to establish a successful relationship with her grandparents. I understand that there have also been visits by the grandparents to Tasmania. Should the mother and X remain in Tasmania then there is no evidence to suggest that such mutual visits could not to continue.
S60CC(3)(f) – the capacity of each of the child's parents and each other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother's capacity to provide for X's physical needs are not impeached. She is the delegated primary carer of the child. She argues, however, that her parenting capacity in respect of X’s intellectual and emotional needs would be enhanced by a relocation to Adelaide. She says that she will pursue her employment and tertiary studies and have the emotional and physical support of her parents in doing so. She argues that such support is not available to her in Tasmania. Nevertheless, the father argues that both he and his family can provide physical support for the mother and respite in her primary care of X. He argues that she currently holds employment in Tasmania and he says, albeit without corroborating evidence that the mother’s preferred tertiary ambitions would be available to her in Tasmania.
It is, of course, proper and relevant that the Court considers the happiness and contentment of a child's primary parent. The authorities make it clear, and it is common sense that a happier parent vicariously brings a positive to a child’s welfare. The consideration of an adult’s 'right' of freedom of movement is inherently considered together with the parent’s contentment. Happiness, however, is in my view a different consideration than any argument as to a manifest negative impact on the actual parenting capacity of the particular parent. In this respect I have no evidence before me in proper form of any such negative impact on the mother’s parenting capacity of a refusal to allow the relocation. My observations are of a stoic, capable and confident mother who parents X to a high standard in Tasmania whilst also pursuing her employment.
S60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
The relevance here is X's young age. Whilst she has established relationships with each of her parents, it is fair to assume that the success of those relationships is based to a large part on the frequency of direct contact for her with each of the parents. Whereas a child of more mature years might be easily able to cope with gaps in time between contact with a parent and be able to use and benefit from various media options, the frequency of direct contact remains important in both the establishment and maintaining of relationships for young children with the parents and others.
S60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander child
Not relevant.
S60CC(3)(i) – the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child's parents
The mother is the delegated primary parent of the child. Parenting is an art with many genre and styles. Whilst the mother may be applauded for taking on the primary parent role in respect of X, the fact that the father delegated that to her is not necessarily a source of criticism of him. Rather, it may well be a recognition by him of the difference in the parenting roles and styles and personalities of each of the parents. On the evidence before me, and after seeing and hearing both parties cross-examined in the witness box, I reject any suggestion by the mother that the father has prioritised his own interests to some selfish degree over those of X’s. I prefer, rather, that he has chosen to take a different role with his daughter.
S60CC(3)(j) and (k) – matters of family violence and family violence orders
The mother’s written material asserts that the father was violent in the sense of being controlling and verbally abusive. To her credit, however, those issues were not prosecuted with any vigour at the trial before me and certainly not emphasised to the Family Reporter. It is reasonable to expect that significant tension existed between these parents at and around the time of separation and given the circumstances of the separation. I am prepared to accept, therefore, that any issues of 'family violence' within the broad definition were situational only and I could not find, in the sense of any malafides, that the father's opposition to the mother’s proposed relocation of herself and X to South Australia is in any way an aspect of a 'controlling personality'.
S60CC(3)(l) – whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child
It is always inherently aspirational in the reasons of trial Judges and their orders that such orders bring an end to litigation between parents in respect of their children. These orders, however, are prospective in their nature and application and it is inevitable that there will be changes for the child and each of the parents as they move forward. The consideration for the Courts and the parents, however, is that the parents should act positively in the parenting of their child with the assistance of the completed litigation, the Court’s Reasons and orders, and not view family Courts as an available default forum if they are later unable to agree on any aspect of their child's parenting.
Consideration and Findings
I am satisfied that X has an established and successful relationship with each of her parents. That relationship takes a different form with the mother assuming and being the delegated as primary parent. I am satisfied, however, that X's relationship with her father is an important one for her and takes a different form than her relationship with her mother.
I am satisfied that X has established and successful relationships with each of the paternal and maternal grandparents. The paternal grandparents have taken a more active and frequent role in her care simply by reason of geographical proximity but it is to the credit of both parents that she has also been able to establish a loving, close and familiar relationship with her maternal grandparents in South Australia.
I am satisfied that matters of family violence do not impact on my primary consideration know in this matter.
The mother's proposal to relocate herself and X to Adelaide has some positives and advantages for the child. Firstly, the mother would be happier in Adelaide where she has the proximate physical and emotional assistance of her parents and extended family. Her preference to live in Adelaide is given some considerable weight and especially so as the unchallenged primary parent of the child. I find the mother to be an extremely capable and ambitious person who legitimately intends to pursue her education and her career and ultimately to benefit her daughter. She has not, however, lived in Adelaide since before the commencement of a relationship with the father in 2011 and did not particularise any friendship or support networks available to her other than her family.
There are, however, disadvantages for X in the mother’s proposal and conversely, therefore, advantages on the father's proposal. Foremost among those is X's young age and the current availability of frequency for X of direct contact with each of her parents. The nature of her relationship with her father is very different to that with her mother but nonetheless important for her. She also enjoys a relationship of frequency and care from the paternal grandparents. This is not to say that the maternal grandparents could not easily assume that role. A further advantage of the father's proposal is that it would alleviate the travel, logistical, and financial imposts of the mother's proposal where the child’s young age is also a relevant consideration. Further, I am unable to satisfy myself that the mother’s detailed and generous proposals for the father’s visits to Adelaide would be sustainable into any long-term future.
I have observed the mother to be of a strong, outgoing and capable personality. She has successfully obtained and re-obtained employment for herself in Tasmania. She parents X to a high quality. Despite the unfortunate circumstances of her separation from the father, she has been able to prioritise the child's needs and, with some aberration, facilitate and encourage X's relationship with her father and her father's family. Put simply, she parents to a high standard without any evidence of negative impact on her parenting capacity by reason of living in Tasmania. The mother has stable employment in Launceston and I am not satisfied that, on the evidence before me, she would be unable to pursue her tertiary ambitions through the University of Tasmania or other institutions or, more relevantly, that Adelaide offers her any educational opportunities not available to her in Tasmania. Similarly, there is no evidence to satisfy me that X’s educational or social activities are any better served in Adelaide than in Launceston or suggested in the mother’s material.
The mother has been able to regularly visit her parents in South Australia and the visits have been reciprocated. I am satisfied that this would continue if the mother was to remain in Tasmania.
As with many matters involving a proposed relocation of a child, the considerations are finely balanced. In this matter, however, I place considerable weight on the young age of X and it being in her best interests to maintain a high frequency relationship with each of her parents. Whilst the mother need not show 'compelling' reasons for a proposed relocation, in this matter I am of the view that she has particularised an argument only as to her own preferences but has not satisfied me that it would be in X's interests, at such a young age (and even given the moratorium of one year suggested by the mother’s counsel), for her to move to South Australia. The mother’s application to move with X to South Australia is refused and I find that X’s best interests are served by her remaining in Tasmania where she can benefit from frequent, spontaneous and flexible movement between her parents.
I must also deal with the injunctive order sought by the mother in respect of X accompanying the father in his hobby as a pilot of light planes.
There is no issue that the father is not appropriately licenced. The mother presents an argument based subjectively on her view of a danger to X in flying with the father. I reject that argument. Children cannot be cocooned from danger. They confront every day a world that is inherently dangerous or risky. Such dangers are regulated by various government authority and variously categorised as illegal/prohibited or legal/permissible. The father’s pursuit is regulated and legal. It would, in my view, be a very dangerous precedent for the Courts to effectively remove the obligation of parents to use responsible judgment in their parenting of children on the basis of subjective objection to a legal activity and certainly without a high degree of objective evidence as to safety concerns such as is not now put before me. X is likely to grow up in a twenty-first century which many argue is already over-regulated and restricted by all levels of government as to personal choice and freedom. I prefer, therefore, that the particular parent take the responsibility for ensuring their child’s safety outside of any legislated restrictions.
Having found that X’s best interests rest with her living with the mother in Tasmania, it remains to be determined what regime of time she is to spend with the father. Contrary to the mother’s suggestions that a simple routine for X, and regardless of the father’s work roster, is in the child’s best interests. I prefer that time between father and daughter must continue to factor in his work roster.
I am also of the view that consideration should be given to allowing the mother and X opportunity for extended time in Adelaide on a number of occasions each year which would require some short suspensions of the father’s time. I will take further submissions from counsel on these matters once they have had the opportunity to digest my reasons herein.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 2 February 2017
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Family Law
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