Segur and Gaddis
[2011] FMCAfam 461
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEGUR & GADDIS | [2011] FMCAfam 461 |
| FAMILY LAW – Children – parenting orders – relocation – best interests of the child – parental responsibility – equal shared parental responsibility – equal shared time – substantial and significant time – allegations of family violence. |
| Family Law Act 1975 (Cth), ss.4, 60C, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 AMS v AIF; AIF v AMS (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-852 M & K [2007] FMCAfam 26 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035 U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112 |
| Applicant: | MR SEGUR |
| Respondent: | MS GADDIS |
| File Number: | SYC 3275 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 & 5 February 2011, 8 April 2010 |
| Date of Last Submission: | 8 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Carlisle Attorneys |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
All previous parenting orders are discharged.
The parties are to have equal shared parental responsibility for the child [X] born [in] 2005.
IN THE EVENT THAT the respondent mother lives in Sydney:
(a)The applicant father is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the father;
(b)The mother is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the mother;
(c)The parties are to share the care of the child as follows:
(i)The child is to live with the father for the first week of each school term from 5.00 pm on the Sunday immediately before the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(ii)The child is to live with the mother for the second week of each school term from 5.00 pm on the Sunday following the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(iii)The child is to live with the father from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2011 and from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2012 and each alternate year thereafter;
(iv)The child is to live with the mother from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2011 and from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2012 and each alternate year thereafter;
(v)
The child is to live with the father for the first week of the Autumn, Winter and Spring school holiday period from
5.00 pm on the last day of the school term until 5.00 pm on the following Friday
(vi)The child is to live with the mother from 5.00 pm of the first Friday of the Autumn, Winter and Spring school holiday period until 5.00 pm on the following Friday;
(vii)For the Christmas/January school holiday period in each year the child is to live with the father from 5.00 pm on the last Friday of the school term until 5.00 pm on 2 January except as provided by Order (3)(c)(iii);
(viii)For the Christmas/January school holiday school holiday period in each year the child is to live with the mother from 5.00 pm on 2 January until 5.00 pm on Australia Day;
(ix)For the child’s birthday being [date omitted] in each year the child will live with the mother from 9.00 am to 2.00 pm and with the father from 2.00 pm until 7.00 pm;
(x)The child is to live with the father on Father’s Day in each year and with the mother on Mother’s Day in each year;
(xi)The child is to communicate by telephone with the parent with whom he is not living at that time on one occasion each day between the hours of 4.00 pm and 8.00 pm and each party must do all things necessary to facilitate that telephone communication;
(xii)Otherwise as the parties agree.
(d)Each party must inform the other party as soon as practicable of any serious illness or injury suffered by the child requiring medical treatment or admission to hospital.
IN THE EVENT THAT the mother remains living in Melbourne the following Orders shall take effect:
(a)The child [X] born [in] 2005 is to live with the father;
(b)The child is to spend time with the mother in Melbourne as follows:
(i)For the entire New South Wales Autumn, Winter and Spring school holiday periods in each year;
(ii)For a period of four (4) weeks during the New South Wales Christmas/January school holiday period as agreed between the parties;
(iii)For the New South Wales Queen’s Birthday and Labour Day public holiday weekends as agreed between the parties and taking into account the availability of airline flights; and
(iv)For the weekend on which Mother’s Day falls in each year as agreed between the parties and taking into account the availability of airline flights.
(c)For the purposes of the child spending time with the mother in Melbourne the father is to be responsible for the payment of the necessary costs for himself and the child to travel from Sydney to Melbourne and the mother is to be responsible for the payment of the necessary costs for herself and the child to travel from Melbourne to Sydney, or as other wise agreed between the parties.
(d)The child is to spend time with the mother in Sydney as follows:
(i)For four (4) weekends in each year in addition to those weekends referred to in Orders (4)(b)(iii) and (iv) where the mother is to travel to Sydney and the father is to pay one half of the mother’s reasonable expenses including airfares and for this purpose the mother must advise the father of her proposed travel dates, flights and fares one (1) month prior to travel;
(ii)At other reasonable times as agreed between the parties.
(e)The child is to share Christmas and Orthodox Easter celebrations with each parent as agreed between them;
(f)For the purposes of changeover the father or a responsible adult member of the father’s family must deliver the child to Melbourne Airport at the commencement of the time that he is to spend with the mother and the mother or a responsible adult member of her family is to return the child to Sydney Airport at the conclusion of that time.
(g)The father must do all things necessary to ensure that the child has regular telephone and email communication with the mother including three telephone calls each week.
The father must authorise the principal of the school attended by the child to provide to the mother at her expense copies of all school reports, newsletters, information about school photographs and all other communications regularly sent to parents of children attending that school.
The mother may communicate directly with the child’s school to obtain all necessary information about the child and a copy of this Order shall be the authority for the school to provide such information.
Each party must inform the other party as soon as practicable of any serious illness or injury suffered by the child requiring medical treatment or admission to hospital.
Each of the parties must inform the other of the name and address of any medical practitioner, dental surgeon or other health professional who has treated the child and authorise such persons to provide all necessary information about the child’s treatment and condition.
The parties must advise each other of any change to their residential address, landline telephone number or mobile telephone number within forty-eight (48) hours.
The parties must do all things necessary to continue the child’s enrolment and attendance at [S] School at [G] unless they agree that he should attend another school.
IT IS NOTED that publication of this judgment under the pseudonym Segur & Gaddis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3275 of 2009
| MR SEGUR |
Applicant
And
| MS GADDIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a little boy called [X], who was born [in] 2005. He seeks orders that:
a)The parties should have equal shared parental responsibility for the child;
b)The child should live in Sydney;
c)If the mother returns to Sydney from Melbourne then the parties would have equal shared care on a week about basis;
d)If the mother remains living in Melbourne, the child should live with the father; and
e)The child should attend [S] School at [G], New South Wales.
The mother seeks orders that:
a)The parties should have equal shared parental responsibility;
b)The child should live with the mother in Melbourne and attend school there; and
c)The child should spend time with the father in Sydney for the whole of the mid-year Victorian school holidays and for two thirds of the Christmas/ January school holidays.
Areas of Agreement
The parties agree that they should have equal shared parental responsibility for the child. They agree on little else.
Background
The father was born [in] 1975. He is now 35 years old.
The mother was born [in] 1978. She is 32 years of age.
The parties commenced their relationship in April 2003. Their only child, [X], was born [in] 2005.
The parties separated in 2008. The mother says that it was in May, the father says it was not later than 30th November 2008.
In March 2009 the mother moved to Melbourne with the child.
On 3rd June 2009 the father filed in this Court an Application for Final and Interim Orders. The Interim orders sought by the father were (summarised):
a)That he have leave to serve short notice of the Application;
b)That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child [X];
c)That the father and mother have the responsibility for making decisions about the day to day care, welfare and development about the child when he was in their care;
d)That the parties should share in the care of the child on a week about basis during the school term;
e)That the parties would share the school holiday periods;
f)That the parties would share Christmas and other occasions;
g)That the parties would re-enrol the child at the Children’s Centre in [B], New South Wales;
h)That the mother return the child to the Sydney Metropolitan Area and thereafter be restrained from removing the child from the Sydney Metropolitan Area pending the final determination of the application.
The mother filed a Response opposing the Orders sought and seeking orders that the child should continue to live with her in Melbourne.
On 9th July 2009 Kemp FM made interim orders by consent providing that:
a)The child [X] was to return to live in the Sydney Metropolitan Area;
b)The child would live with the mother in Melbourne until 18 July 2009;
c)The child would live with the father in Sydney from 19 July to 26 July 2009;
d)The child would live with the mother in Melbourne from 26 July to 8 August 2009; and
e)The child would live with the father in Sydney from 9 August to 23 August 2009.
His Honour also ordered that (inter alia):
a)The parties were to attend a Child Dispute Conference on 9th July;
b)The application be listed for interim hearing on 24th August 2009;
c)A Family Report be prepared; and
d)The application to be listed for final hearing on 4th and 5th February 2010.
The interim hearing was later adjourned to 26th August 2009.
On 26th August 2009 her Honour Hughes FM ordered that:
(1)The parties were to have equal shared parental responsibility for the child;
(2)In the event the mother relocated to Sydney, the child would live with each parent on a week about basis with handover to occur at 5:00 pm each Sunday;
(3)In the event the mother remained living in Melbourne, the child would live with his father in Sydney and spend time with his mother on various specified dates;
(4)The parties were to share the cost of the child’s transport between Sydney and Melbourne; and
(5)Each parent may telephone the child at any reasonable time.
The Family Report, prepared by Dr G, was released to the parties on 9th December 2009.
Evidence
The applicant father relied on affidavits by himself, Ms G, Ms M and Ms Y. Neither Ms M nor Ms Y were required for cross-examination.
The father said in evidence that if the mother did not return to Sydney he would like [X] to stay living with him and for the mother to see him as often as she could. If the mother were to return to Sydney, he would like the parties to have shared care of the child on a week about basis. He wanted the child to continue to attend [S] School.
In cross-examination he denied using physical violence on either the mother or the child although he admitted sending the mother some abusive text messages.
Ms G is the mother of the applicant father. She affirmed two affidavits, on 29th June 2009 and 29th January 2010.
In her earlier affidavit, Ms G deposed that she had often cared for the child during the time that the parents were together. She lives about ten minutes’ drive from the father’s residence. She deposed that before the mother took [X] to Melbourne in March 2009, she would see the child at least once a week, when his father would bring him to visit her. She stated that the child would often play with his cousins. She also deposed that she had often observed the father engage in such activities as:
a)playing football in the backyard;
b)playing with toys at her house;
c)colouring-in together; eating meals together; and
d)watching TV together.
In her later affidavit, Ms G replied to and denied various matters contained in the mother’s affidavit of 8th July 2009. In particular, she stated that she had never seen the father engage in any acts of violence. She also deposed that she had seen the child at least twice a week since he returned from Melbourne. she had often seen the child interacting happily with his father and his cousins.
Ms G gave oral evidence with the aid of an interpreter in the Arabic language. In cross-examination by Mr Wong of counsel, who appeared for the mother, she said that on one occasion her son had telephoned her at about 1:30 am and asked her to go over to his place because he and the mother had had a serious argument. She said that both the father and the mother were “screaming at each other” when she arrived. She denied that the mother told her that the father had hit her, but she did say that she had asked her son if he had hit her. She said that he replied:
“No, I never touched her”.[1]
[1] Transcript 4.2.2010 at line 40
However, it was put to her that she had, in her affidavit of 29th June 2010 that the mother had said that the father had hit her ([Ms Gaddis] said words to the following effect: “[Mr Segur] hit me”). She said that the mother was lying, because the father had never hit her. She conceded that the mother had said to her that the father had hit her. However, she went on to say that the mother did not have any marks on her body.
The father was recalled for further cross examination the following day about text messages on the mother’s mobile telephone which were abusive in nature.
The affidavit of Ms M sworn on 15th May 2009, but only filed on 4th February 2010, is relatively brief. Ms M deposed that she was employed at the [B] Children’s Centre, where the child [X] had attended from 8th August 2008. Relevantly, Ms M stated that the last day the child [X] attended the Children’s Centre was the 6th March 2009. The mother later telephoned and said to her:
“I would like to give notice that [X] and I won’t be back to the Children’s Centre. We are here on holidays in Melbourne. We are staying longer in Melbourne than we had previously thought.”[2]
[2] Affidavit of Ms M 15.5.2009 at paragraph [5]
Ms M was not required for cross-examination.
The affidavit of Ms Y was affirmed on 29th January 2010. Ms Y is the sister of the partner of the brother of the father. She deposed that she had known the mother for approximately nine years and before the mother and the father separated she used to spend time with the mother frequently.
Ms Y stated that the mother told her that she and the father had been fighting and she asked her if the father had hit her. The mother said that he had not. However, on a later occasion around October 2008 the mother told her that she and the father had a fight, saying:
“[Mr Segur] shouted at me and he pushed me.”[3]
[3] Affidavit of Ms Y 29.1.2010 at paragraph [7]
Ms Y went on to express some scepticism of the mother’s account, saying:
In the course of the abovementioned conversation with [Ms Gaddis], I recall feeling confused in that what she was recounting to me appeared to me to comprise of inconsistencies.
I have never observed [Mr Segur] to be a violent person or ever hit his son.[4]
[4] Affidavit of Ms Y 29.1.2010 at [8]-[9]
Ms Y was not required for cross-examination.
The mother gave oral evidence and was cross-examined by the father’s solicitor, Mr Carlisle. She said that she told the father that she was going to remain in Melbourne at about the end of March or early in April 2009. She did not disclose her postal address until April 2009 and did not disclose her residential address until her affidavit of
29th January 2010.
The mother said that she decided not to disclose the address:
…because at the time I was going though some fearful things in my life in regards [Mr Segur] and which I have sought counselling for…[5]
[5] Transcript 5.2.2010 page 24 at lines 18-19
The mother said that she realised that it was wrong not to tell the father at the time that she was going to remain living in Melbourne. She said:
And I know that my decision (not) to tell [Mr Segur] is wrong and I regret that now after being in certain positions I was in at the time. I felt that that was the right decision to make but after seeking professional advice through my counsellor and having someone to talk to about issues and dealing with things in my life I now realise that that was a big mistake that I made and I should have told [Mr Segur] being the father of [X].[6]
[6] Transcript 5.2.2010 page 40 at lines 25-30
The mother went on to say that she wanted to move to Melbourne to get away from “the domination and overpowering I feel from his family, especially his mother…”[7]
[7] Transcript 5.2.2010 page 45 at lines 11-12
She also said that she felt there were better opportunities for [X] and better job opportunities for her.
The mother has formed a relationship with a man named Mr A. He deposed in his affidavit sworn on 29th January 2010 that he had commenced his relationship with the mother about September 2008, although they had known each other for about twelve years.
The mother visited Mr A in Melbourne on several occasions and eventually they decided that she would move to Melbourne, which she did in March 2009. Mr A deposed that he had a good relationship with the child. They separated for a period of time but resumed their relationship in December 2009. They live in a home with Mr A’s parents.
In cross examination, Mr A said that if the mother were to move back to Sydney, he and she would have to discuss the issue over time. He said that before the mother moved to Melbourne he believed that they were in a permanent relationship and said:
“Well, we don’t have to live together to be permanent.”[8]
[8] Transcript 5.2.2010 at line 8
The mother also relied on an affidavit by Ms R, a former neighbour. Her evidence was that she knew that the mother was frequently home alone and the father was often out for long periods. Ms R deposed that she frequently heard the mother and father fighting, “along with loud thumping noises on the wall”. She stated:
I often heard [Ms Gaddis] crying, as I could recognise her voice and the sound of loud sobbing.[9]
[9] Affidavit of Ms R 26.6.2010 at paragraph {15]
Ms R deposed that the mother would complain to her that the father had hit her or pushed her into the wall during one of their fights. She stated that the mother spoke to her about leaving the father.
In cross-examination, Ms R said that she had had a close relationship with the mother but did not have a close relationship with the father, although she would occasionally borrow money from him. She said that she had not lied about either one of the parties.
The Family Report
The Family Report was prepared by Dr G. For the purpose of the Report, Dr G interviewed the following:
a)the mother;
b)the child;
c)the father; and
d)Ms G, the child’s paternal grandmother.
Dr G observed the child with his mother and, on another day she observed the child with his father. Later on that same day she observed the child in the presence of his father and paternal grandmother.
The child was described in the Family Report as:
…a vibrant child with a cheeky grin and a ready laugh. He displayed a lively intelligence. His verbal communication skills were excellent. He can write his name, and displayed an elementary numeracy and literacy. He knows both of his parents’ mobile numbers.[10]
[10] Family Report page 14 paragraph [46]
However, the child was observed on the first occasion as being “extremely clingy” with his mother. Dr G was unable to interview him on that occasion as he would not be separated from his mother.[11]
[11] Ibid at 15 [48]
Dr G stated that the child was strongly attached to both parents and was clearly suffering distress from the shared parenting arrangement in force at the time involving travel between Melbourne and Sydney.
Dr G described the child’s needs and the mother’s needs as “incompatible”, because the mother needed to distance herself from the father and his family. The mother described in some detail the father’s violence towards her. Dr G expressed the opinion that the mother’s situation in Melbourne did not impress as stable and secure, apart from the job that she had obtained as a [omitted]. Dr G said that the nature of the mother’s relationship with Mr A was unclear. At the time, the mother and Mr A were separated, although the evidence since then from both him and her was that they were back together again.
Dr G noted that the child [X] was clearly attached to his mother, although she described it as “an insecure attachment”.[12]
[12] Family Report page 20 [66]
Dr G states:
[X] expressed a clear wish to reside in Sydney where his ‘family’ reside. He seems to enjoy his little peer group of cousins who are planning to attend school together. I would strongly suggest that [X] be permitted to attend [S] School for this reason.[13]
[13] Ibid at [67]]
The Family Report contains the following recommendations:
·That there be shared parental responsibility.
·That [X] lives in Sydney.
·That the best outcome for the child would be for both parents to reside in Sydney.
·That if the mother returns to Sydney there be shared care of the child.
·That the shared care arrangement be a split week arrangement rather than week about.
·If the mother does not return to Sydney then the child should be in the primary care of the father.
·That the child attends [S] School’s school with his cousins, starting in 2010.
·If there is found to be substance in the mother’s claims that the father has been violent towards her, that he attends a multi-week program for perpetrators of domestic violence.
·That the parents be required to fulfil the Court order that they each attend a multi-week parenting after separation program.
·That the mother continues he counselling by engaging a counsellor in Sydney.
·That the parents be restrained from denigrating each other, or allowing those associated with them to denigrate either of the parents within hearing of the child.
Dr G was cross-examined by the father’s solicitor and the mother’s counsel. She expressed the view that [X] had witnessed verbal disputes between his parents. She said that the communication between the parents was poor. [X] needed a meaningful relationship with both of his parents.
Submissions
The father’s solicitor, Mr Carlisle, submitted that the Court should not find that the father was an aggressive, verbally and physically abusive and controlling individual of whom the mother was fearful. The mother had agreed in cross-examination that she had attended [X]’s first day of school at [S] School’s and had come into close proximity with the father on that occasion. She had also been able to contact the father on various occasions and express her opinions about matters of concern relating to the child. She had made no allegations about any incidents of physical violence since separation.
Further, it was submitted that whilst the mother had claimed that she wanted to move to Melbourne to get away from the father, she had really wanted to further her relationship with Mr A.
Again, Mr Carlisle submitted that the mother had not complained to the Police about the violence which she had alleged was perpetrated by the father. There was no medical evidence produced about any injuries suffered by the mother in any assault by the father.
The submission is that the totality of the evidence did not lead to a conclusion that, on the balance of probabilities, the applicant father perpetrated family violence on the respondent mother, as defined in subsection 4(1) of the Family Law Act. Further, the evidence in this case would not rebut the presumption in s.61DA of Act that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. Even if there were a finding that there were acts of violence as claimed by the mother, there was no present significant risk of the child being exposed to family violence with the father.
An equal shared parental responsibility order would be in the child’s best interests and would be consistent with the first object of Part VII of the Act, by helping to ensure that the child has the benefit of his parents having a meaningful involvement in his life.
Mr Carlisle submitted that there were factual matters supporting the residence of the child in Sydney:
a)He has resided in Sydney throughout his life, except for a few months;
b)He has been educated in the company of his cousins, with whom he has a close relationship;
c)His close paternal family live in Sydney;
d)He has no close relative in Melbourne apart from his mother;
e)There is an absence of long-term stability in the mother’s relationship with Mr A; and
f)The child has made satisfactory progress in school notwithstanding the instability caused by his travelling to and from Melbourne on a regular basis.
It was further submitted that the only practical basis upon which the parties may undertake shared parental care was if the mother were to return to Sydney. The decision of MRR v GR[14] should be distinguished as it is practicable for the mother to return to Sydney and undertake shared care.
[14] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
Mr Carlisle also submitted that the child had expressed a wish to remain living in Sydney with his father.
Counsel for the mother, Mr Wong, submitted that, whilst both parties loved [X] and were able to care adequately for his physical needs, they did not get along with each other and had a dysfunctional history. Whilst the parties were together, the father was violent and verbally abusive to the mother and he continued to be verbally abusive after they separated. The mother is intimidated by the father.
It was further submitted that it could hardly be in the child’s best interests that he live primarily with a parent who has been violent and verbally abusive to the other parent except in circumstances where the balance of other factors outweighed that concern.
The mother conceded that she had done “the wrong thing” in her unilateral move to Melbourne but, it was submitted, this should be seen in the context of the history of family violence.
The mother is comfortable and stable in Melbourne, with a relationship and job in the Victorian [omitted] system. It was submitted that she could provide a better and more stable life for [X] in Melbourne than she could in Sydney.
Mr Wong submitted that the recommendation of the Family Report writer, Dr G, that the child remain living in Sydney, in order to maintain the link with his paternal family, need not be followed. There was no evidence to suggest that the link would not be maintained, given the proposals put forward by the parties. He also submitted that Dr G was “fixated with the notion that the Mother should return to Sydney”. The notion of forcing the mother back to Sydney, if only as a function of [X]’s continued residence in Sydney, created problems, including:
a)the mother having to deal with the father on a regular basis regarding [X]’s schooling, social and extra-curricular life;
b)the mother having the instability of having to return to a city where she had not secured accommodation or employment; and
c)the mother having to deal with the possible breakdown of her relationship with Mr A.
Whilst the child had expressed a view about wanting to live in Sydney to stay connected with his paternal extended family, Mr Wong submitted that at five years of age, only four when the Family Report was written, he was too young to be able to express a view that should be given any weight. Further, any view that he may have expressed would be subject to the transient mood and more limited cognitive function of such a young child.
Counsel for the mother submitted that the advantages of the child being permitted to relocate to Melbourne were:
a)He would live with the parent who had been his primary carer throughout his entire life, except for the period commencing in late 2009;
b)The mother would be living with her partner Mr A;
c)The mother would be happy in that she would be residing with her partner and child in Melbourne;
d)The child would be removed from an environment in which he was exposed to parental conflict; and
e)He would be able to spend regular time with the father, including:
i)once per month;
ii)all of the term holidays; and
iii)half of the Christmas holidays.
It was submitted that the disadvantages of relocation to Melbourne were:
a)The risk that the parental relationship with the father may diminish;
b)The child would not see his father and his family with the same frequency as before;
c)He would have to travel; and
d)The father would be unhappy because of the location where his child lived.
Mr Wong submitted that the advantages of the child staying in Sydney with the mother living in Melbourne were:
a)[X] would live with his father in a regime that he had been in since late 2009;
b)The father would be happy that the child would be residing with him;
c)The child would be removed from an environment in which he was exposed to parental conflict;
d)He would be able to spend time with the father’s family more easily than if he were living in Melbourne; and
e)He would be able to spend regular time with his mother.
The disadvantages of the child staying in Sydney with his mother living in Melbourne were:
a)The risk that the parental relationship with the mother may become less secure (there is evidence that he is not coping with his separation from his mother);
b)The child would not see the mother and Mr A with the same frequency as he would if he were living with his mother;
c)He would have to travel; and
d)The mother would be unhappy because her child would be living in another city.
Mr Wong submitted that the advantages of the child living in Sydney with the mother and spending time with the father or in an equal shared time arrangement were:
a)He would be able to spend time with his father and mother regularly;
b)He would be able to continue his frequent interactions with his father’s family; and
c)He would be able to spend equal time with each of his parents.
The disadvantages of this arrangement would be:
a)The mother would stay in New South Wales and not join Mr A;
b)The mother would not be pleased about this arrangement, which may adversely affect her mood and happiness;
c)The relationship between the parties could deteriorate;
d)The child would continue to be exposed to ongoing parental conflict;
e)The mother’s employment prospects are unclear;
f)The mother’s accommodation is unclear;
g)The relationship between the mother and Mr A may be strained if he were not to relocate to New South Wales; and
h)The parties would need to communicate regularly about the child, and they are unlikely to deal with this challenge well.
Mr Wong submitted that, on balance, the benefits of the child moving to Melbourne outweigh the negatives.
Further, it was submitted that, whilst the mother could no longer be described as “the undisputed residence parent”, the Court should still have regard to her freedom of movement in the terms enunciated by Kirby J in AMS v AIF; AIF v AMS[15]and summarised by Altobelli FM in M & K[16].
[15] (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-852
[16] [2007] FMCAfam 26
Mr Wong submitted that equal shared time between the parties was neither in the child’s best interests, nor was it practical, given the mother’s stated preference to remain in Melbourne. The parties’ proposals for time with the other parent would barely qualify, if at all, as “substantial time”. Nevertheless, it was submitted that the Court should make orders in accordance with those proposed by the mother, which are, in essence, that:
a)The parties should have equal shared parental responsibility for the child;
b)That he live with the mother;
c)That he spend time with the father in Sydney during school holidays, long weekends, other weekends such as Father’s Day and four other weekends each year.
Relevant Law
The best interests of the child must be the paramount consideration (Family Law Act, s.60CC). The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3) of the Act.
Each of the parents of a child who is not 18 years of age has parental responsibility for that child (s.60C(1)). When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (see Goode & Goode[17]).
[17] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence (s.61DA(2)), and the presumption may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court is required to consider whether the child spending equal time with each parent is in the child’s best interests and reasonably practicable (s.65DAA(1)).
If the Court does not make such an order, it is required to consider whether the child spending substantial and significant time with each parent is in the child’s best interests and reasonably practicable (s.65DAA(2)). The term “substantial and significant time” is defined by s.65DAA(3) of the Act.
When considering whether equal time or substantial and significant time would be reasonably practicable, the Court must have regard to the matters in subsection 65DAA(5), which include how far apart the parents live from each other.
I have considered all of these matters.
This is what is described as a “relocation case”. I am indebted to my learned colleague Altobelli FM for the very useful summary of the law contained in M & K[18] at [29] – [52], in which his Honour refers to the leading decisions of AMS v AIF; AIF v AMS[19], A v A Relocation Approach[20], and U v U[21]. His Honour referred at [29] to a discussion of the law in the Family Law Council’s Report on Relocation where these principles were enunciated:
· Relocation cases are not a special category of cases…the cases are best described as “parenting cases where the proposal of one of the parties involves relocation.”
· The best interests of the child is the “paramount consideration but not the sole consideration.”
· The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
· The issue of relocation cannot be separated from the issue of residence and the best interests of the child.
· A court cannot require the person who wishes to relocate to demonstrate “compelling reasons for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
· It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.[22]
[18] Supra
[19] supra
[20] [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
[21] (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112
[22] Family Law Council Report, Relocation, Canberra, May 2006 cited in [2007] FMCAfam 26 at [29]
Whilst the principles refer to the earlier terms of “residence” and “contact”, in my view the principles themselves are still an accurate summary of the matters that a court should consider.
I have considered all of the above matters.
Conclusions
The best interests of the child remain the paramount consideration. They are not the only consideration, as the parents’ interests are also relevant.
The parties agree that they should have equal shared parental responsibility for the child. This is a common factor throughout their proposals. However, the Court must still consider whether to make such an order.
There is no evidence that either party has abused the child. The mother has claimed that the father has engaged in violence towards her, but she nevertheless does not argue that for that reason the father should not have equal shared parental responsibility. I am satisfied that the father has certainly verbally abused the mother, and his telephone text messages to her were couched in the moist abusive terms which do him no credit whatsoever.
However, I am not satisfied that the evidence leads to a finding of family violence sufficient for me to be satisfied that, for this reason, an order for equal shared parental responsibility should not be made. There is evidence of poor communication between the parties, but I am not satisfied that there is evidence that equal shared parental responsibility would not be in the child’s best interests. I propose top make an order that the parties are to have equal shared parental responsibility for the child [X].
The competing proposals appear to be:
a)That the mother be permitted to relocate the residence of the child to Melbourne;
b)That the child remains living in Sydney whilst the mother lives in Melbourne; and
c)That the child remains living in Sydney and the mother moves back to live in Sydney.
The first proposal is the one that the mother puts. The second and third proposals come from the father. The father’s counsel, Mr Wong, has in his written submission, given a thorough coverage of these proposals.
There is a fourth consideration, which is that the child would live in Melbourne and the father would relocate to Melbourne. The parties have not made any submissions on this proposal.
The Court must approach the consideration of the competing proposals by asking which proposal would be in the child’s best interests. To do that, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Those matters are relevant to all of the competing proposals.
I am satisfied that it is of benefit to this child to have a meaningful relationship with both parents. There is clear evidence from the Family Report that he loves both parents and is strongly attached to both of them.
There is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no evidence that he has been abused, neglected or subjected to family violence. Dr G expressed the view in the Family Report that the child had been exposed to verbal arguments and discord between his parents, which was obviously distressing to him.
It is relevant that the parties have separated permanently and, if there had been family violence perpetrated by the father on the mother when they lived together, this is unlikely to occur in the future. There is evidence of continuing verbal abuse of the mother by the father but this seems to have halted.
[X] has expressed a view that he would prefer to live in Sydney, because his cousins and family live there.[23] However, I take into account his young age and I consider that this will affect the weight to be given to his view.
[23] Family Report pages 16 [51], 17 [56]
The child has a loving relationship with each parent. He also has a loving relationship with his paternal extended family, particularly his grandmother, who plays an active role in his care while he is in Sydney.
The mother has, since separation, formed a relationship with Mr A, but he was not interviewed for the purposes of the Family Report because he and the mother had temporarily suspended their relationship. He has given evidence and it would appear that he has a friendly relationship with the child.
Despite their differences, each parent has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. The difference, and it is a big difference, is that the father wants the child to live in Sydney and the mother wants him to live in Melbourne.
There have been changes in this child’s circumstances. His parents separated. His mother moved to Melbourne with him and he saw little of his father for a time. There were then interim orders that had the child living alternately with his mother in Melbourne and his father in Sydney during the school holidays.
On 26th August 2009, Hughes FM ordered that if the mother returned to live in Sydney the parents would have shared care on a week about basis, but if she remained living in Melbourne then the child would live with the father in Sydney. The child has been living in Sydney with his father and the mother remained living in Melbourne.
This little boy has been travelling to Melbourne on a frequent basis to spend time with his mother. It would have a significant impact on him to move permanently to Melbourne, away from his father and his paternal extended family.
There is a practical difficulty and some expense involved in this child spending time and communicating with one or other parent, as one lives in Sydney and the other wishes to live in Melbourne. The problem will remain no matter with which parent he lives, as long as his mother continues to live in Melbourne.
However, Melbourne and Sydney are not far apart by air and [X] has been travelling between one city and the other for some time now. He is still too young to travel by himself, so he needs to be accompanied by a parent or another responsible adult.
Each parent has the capacity to provide for the child’s needs, including his emotional and intellectual needs. Dr G noted in the Family Report that [X]’s nurturing needs are met by both parents.[24] The child’s paternal grandmother plays an active role in his care.
[24] Family Report at 17 [58]
I take into account that this little boy is only five years of age. He has grown up with frequent contact with his paternal extended family, which he apparently enjoys.
The parents’ attitudes to the child and to the responsibilities of parenthood are generally positive. They each care for him and provide for him. However, their mutual lack of communication does not assist their parenting and they need to be able to cooperate more.
The mother has claimed, and the father has denied, that the parties’ relationship was marked by violence. The father’s mother has expressed scepticism about the mother’s claims to have been assaulted by the father, but she is a partisan observer. I am satisfied that the father has directed verbal abuse towards the mother, both before and after the parties’ separation and this has had a significant negative effect on their communication.
I am not satisfied on the evidence that the mother left Sydney for Melbourne to escape violence by the father. It appears clear that she moved to Melbourne to further her relationship with Mr A.
There is no Apprehended Violence Order or other family violence order in force and there is no evidence that there has been such an order in the past.
It would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the child. This is always a difficult question, as a party can always appeal or apply to vary a parenting order once made. However, the only proper course is to make an order that meets the best interests of the child.
[X]’s parents have separated. Events that have happened since then are that the mother has moved to Melbourne and formed a relationship with Mr A. The relationship was off at the time the Family Report was prepared, but this was only a temporary break and the evidence is that the relationship is continuing and is regarded by the parties as a permanent relationship.
It is also relevant that [X] has commenced school since the parties separated.
The factors to which I have referred above are common to the parties’ competing proposals.
The mother’s proposal is that she should be permitted to relocate the child’s residence to Melbourne and that he would spend holidays and some weekends with his father.
The advantage to this proposal is that [X] would spend more time with his mother. It is clear from the Family Report that he has missed his mother and wants to spend more time with her.[25] The advantage to the mother is that she would obviously be happier in Melbourne, where she is in a relationship with Mr A and where she has obtained employment in a job that she likes.
[25] Family Report at 15[48]-[49]
Indirectly, it would be of benefit to [X] if his mother were happier. I do not see that, at this stage at least, Mr A is a particularly significant figure in [X]’s life, although that may change as the relationship with [X]’s mother progresses.
The disadvantage to [X] is that living in Melbourne takes him away from frequent time with his father. It would also take him away from his paternal extended family, being his grandmother and his cousins. Further, he would have to leave [S] School which he currently attends, and where a number of his cousins attend. Apart from his mother, [X] has no other family members in Melbourne.
The second proposal is that the child remains living in Sydney with his father and his mother lives in Melbourne, which is a continuation of the arrangement that has existed up to the hearing. The advantages are that he would spend regular and frequent time with his father, his grandmother and other members of his paternal extended family. He would also remain at the same school.
The disadvantage is that he would still be separated from his mother and would have to travel frequently to spend time with her. He would also not spend a great deal of time with Mr A, but I am not satisfied that he is a significant figure in the child’s life.
The third proposal is that the child remains in Sydney and his mother returns to live in Sydney. The advantages of that proposal are that the child would be able to spend time with both parents. He would be able to continue his interaction with his paternal extended family and he would be able to continue attending the same school.
The disadvantages are that the mother would not be happy at returning to Sydney and the move may put a strain on her relationship with
Mr A. There may be a continuation of the conflict between the parents.
The other option, of course, is that the child stays in Melbourne and the father would move to Melbourne. The advantage would again be that the child’s parents would live in the same city.
The disadvantages of this idea are that the child would be separated from his paternal extended family and would have to change schools. This would cause him some distress.
In my view, on reviewing the competing proposals, it is in the child’s best interests to continue living in Sydney. He has a strong attachment to his father and enjoys a frequent interaction with his father’s extended family, including his cousins. He would remain at the same school that he apparently enjoys.
It would be preferable if the mother were to relocate back to Sydney and, if so, the parties could have a shared care arrangement with the child. That way, [X] would spend more time with his mother, which he would prefer. I note that remaining in Sydney is in accord with the child’s wishes and is a recommendation of the Family Report.
If the mother does not wish to relocate herself back to Sydney, but prefers to continue living in Melbourne, then the child should live with the father and spend holiday time and various weekends with the mother.
For these reasons, I am of a view that the orders proposed by the father are in [X]’s best interest.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 12 May 2011
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