Silver and Debster

[2014] FCCA 979

FEDERAL CIRCUIT COURT OF AUSTRALIA

SILVER & DEBSTER [2014] FCCA 979

Catchwords:
FAMILY LAW – Parenting – proposed relocation to Canberra – benefit of the children’s relationship with both parents – children previously separated from mother when they lived in (country omitted) – application dismissed.

Legislation:

Family Law Act 1975

Champness & Hanson [2009] FamCAFC 96
Hepburn & Noble [2010] FLC 93-438
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sealy & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FLC 93-345

Applicant: MR SILVER

Respondent: MS DEBSTER

File Number: MLC 7139 of 2009

Judgment of: Judge McGuire

Hearing dates: 16 & 17 April 2014

Date of Last Submission: 17 April 2014

Delivered at: Melbourne

Delivered on: 5 June 2014

REPRESENTATION

Counsel for the Applicant: Ms B Tulloch

Solicitors for the Applicant: Kennedy Partners

Solicitors for the Respondent: Unrepresented

ORDERS

1. That the father’s amended initiating application filed 24 March 2014 be dismissed.

2. That should the parents be unable to reach agreement as to the schools to be attended by the children X, born (omitted) 1999, Y, born (omitted) 2001, and Z, born (omitted) 2006 then the father be entitled to enrol the children or any of them in his preferred school.

IT IS NOTED that publication of this judgment under the pseudonym Silver & Debster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7139 of 2009

MR SILVER

Applicant

And

MS DEBSTER

Respondent

REASONS FOR JUDGMENT

Applications

1. These are proceedings about three children:

   a)X born (omitted) 1999 (aged 14 years);

   b)Y born (omitted) 2001 (aged 12 years); and

   c)Z born (omitted) 2006 (aged 8 years).

2. The applicant is the father.  He wants orders allowing him to relocate the three children from Melbourne to live in Canberra.  Mr Silver has been in a relationship with Ms E since September 2009. She works as the (occupation omitted) of the (employer omitted) based in Canberra.  She works on a four or five year contract (omitted) visa.

3. The father is currently unemployed.  He has tertiary qualifications in (omitted) and in (omitted).  His most recent employment has been with (omitted) in (occupation omitted) positions.  He says that he has been unsuccessful in obtaining employment in Melbourne for more than six months and believes that there would be more opportunities for him in Canberra.  He says that, in any event, there is financial security for he and the boys available from Ms E who has a salary of $80,000 gross per annum together with rent-free accommodation and some allowances.

4. The boys currently attend a private school.  Mr Silver has given notice to the mother and the Court that he will not be able to meet the school fees and a change of school for these three children will be inevitable whether or not they move to Canberra. The parents do not agree on the school the children should attend if that father’s application to relocate them is unsuccessful.

5. Mr Silver has extended family in Melbourne but his father gave evidence that he and the paternal grandmother are prepared to move from Melbourne to Canberra to maintain close ties with the three boys and have, in fact, put in train the selling of their Melbourne home for this purpose.

6. The father proposes that the children spend all of the first and third term holidays with the mother together with half of the second term and summer holidays.  In addition, he proposes that the children travel to Melbourne on one occasion in each school term from 9 am on the Saturday until 5 pm on the Sunday together with time in Melbourne on two long weekends per year and on the mothers’ day weekend, the time for weekends during school term is to take place in Canberra.The father says that he would be responsible for the travel costs associated with the children spending time with the mother.

7. The mother opposes the application.  She says that the children have only recently settled after orders made in January 2012 when the parties agreed that the father and the children would return from (country omitted) to live in Melbourne whereupon a regime of the children spending nine nights with the father each fortnight and five nights with the mother began.

8. The mother argues that the children have a close but developing relationship with her two younger children from her relationship with Mr L and that these relationships, together with her own relationships with the children would be negatively impacted by the changes proposed the father.

9. The mother says that there is no evidence of any certainty that the father will have better prospects of employment in Canberra than in Melbourne and that Ms E’s employment contract in Canberra is of limited duration and that a further move is likely and, in any event, that the father and Ms E say that they intend to start their own family whereupon she will either be taking long leave or relinquishing her employment.

Background

1. The applicant is 44 years of age.  The respondent is 42 years old.  They married and commenced cohabitation on (omitted) 1996. In October 2005 the husband obtained employment with (employer omitted) in (country omitted).  The mother and the two older children moved from Melbourne to (country omitted) in early 2006.  Z was born in (country omitted) in May 2006. The wife commenced a relationship with Mr L in (country omitted) in October 2008.  The parties shortly after separated under the one roof. The husband commenced a relationship with Ms E in September 2009 and the parties physically separated.

2. On 6 August 2009 the husband commenced family law proceedings in the (country omitted) Court seeking parenting orders.  One week later on 13 August 2009 the wife commenced proceedings in the Family Court of Australia for property and parenting orders.  On 23 October 2009 interim orders were made in the (country omitted) Court for the children to live with the father.  On 8 December 2009, the Family Court of Australia application was adjourned until a final determination of parenting proceedings in (country omitted). 

3. On 31 December 2009, the wife returned to Melbourne with Mr L when her immigration permit expired.  The father and the children remained in (country omitted) on a visitor visa when the father’s employment with (omitted) ended in January 2010. The mother visited the children in (country omitted) in May, August, October and December 2010. Final orders were made in the (omitted) Court in (country omitted) on 14 December 2010 whereby the children were to live with the father.

4. In January 2011 the father commenced employment with the (omitted) in (country omitted).  On 7 September 2011, the mother issued an application in a case in the Family Court of Australia seeking parenting orders.  The mother in the meanwhile had two children with Mr L, being A, born (omitted) 2010 (now aged four years) and B, born (omitted) 2011 (now aged two years).

5. Final orders were made by consent in the Family Court of Australia on 16 January 2012 whereby, inter alia, the father agrees to return to Australia permanently with the children from the end of the (country omitted) school year in December 2012.  The children continued to visit the mother in all school holidays.

6. On 4 December 2012 the father wrote to the mother requesting that he be permitted to live in Canberra with the children on the basis of him being more likely to obtain employment there with an (employer omitted).  The mother refused the request.  Consequently, in December 2012 the father and the children returned from (country omitted) to live in Melbourne and initially with the paternal grandparents in (omitted).

7. In January 2013 Senior Registrar Fitzgibbon made orders after a defended hearing whereby the children were to attend the father’s preferred (omitted) Grammar School as opposed to the mother’s preference of (omitted) College.  In July 2013 Ms E was offered her position with the (employer omitted) in Canberra and moved from (country omitted) to take up that role in December 2013.

8. In November 2013 the father again wrote to the mother requesting her permission to relocate the children from Melbourne to Canberra.  She refused.  In January 2014 the parties attended mediation in respect of the father’s proposal to relocate the children to Canberra.  The mediation was unsuccessful.

9. The father commenced these proceedings by an application filed 7 February 2014 and later amended on 24 March 2014.  A family report was ordered and the matter was set for trial on 16 April 2014 in the pilot relocation list in Melbourne.

Evidence

1. The father relied on three affidavits filed 7 February, 24 March and 11 April 2014 together with a sworn financial statement filed 24 March 2014.  He adduced evidence from Ms E whose affidavit was filed 24 March 2014.  She deposed to the circumstances set out above and that she, the father and the three children had “lived as a family” from January 2011 until December 2012 in (country omitted).  So she says that she had a close and involved relationship with the three boys.

2. Ms E says that she and the father intend to marry on (omitted) June 2014 and hope to commence a family together.  She says that she would qualify for 180 days paid maternity leave and six months parental leave paid at 30 per cent of her salary and then leave without pay for up to 10 years.

3. In cross-examination, Ms E confirmed that her employment is restricted by her (omitted) visa and that her qualifications in (omitted) would not give her easy access to the workforce other than in her current position.  Her contract is for four years with an option of one further year but unlikely to be continued in Canberra after that period expires.

4. The father also adduced evidence from his own father, Mr A.  He deposed to his close relationship with the three boys to the extent that he and his wife, both pensioners, are prepared to uproot themselves from their long term accommodation in suburban Melbourne and move to Canberra.

5. The mother relied on her two affidavits filed 8 February and 7 April 2014 together with her financial statement filed on 3 April 2014.  She did not adduce any further evidence.

6. The Court had the benefit of a family report from Mr P, dated 25 March 2014.  Mr P was cross-examined.  His report makes reference to the previous family report prepared in January 2012 by Dr M.  The references are primarily to the historical chronology referred to above.  Dr M was not called as a witness to have her observations and recommendations tested.  The father did not invite me to read her affidavit.  I have not read it and its contents are not read into evidence.

7. Mr P recommends that X, Y and Z continue to live with the father for nine nights a fortnight and with the mother on the other five nights as is the situation under the current orders.  He recommends against the relocation of the children to Canberra.  Mr P was cross-examined vigorously and maintained his recommendation towards the status quo and against the relocation of the children.  He conceded that his recommendation was arrived at on a “balancing process” which included some “speculation” as to the longevity of the father’s relationship with Ms E and some doubt as to her employment continuing in Canberra after the expiration of the four year period. In cross-examination, Mr P further agrees that his determination had been one of “being on a knife’s edge”;  that his determination was based on some “speculation”;  and that the boys would “certainly cope” with a move to Canberra. 

8. Mr P interviewed each of the children and agreed with the counsel for the father that X “certainly didn’t take a strong view for or against a move to Canberra” and “did not have a negative view about Canberra”.

9. Mr P observed that Y is more confident and outgoing than the older X.  Y was noted as already having two friends from (country omitted) who were living in Canberra.  He confirmed a good relationship with both Mr L and Ms E.  Y’s views must be taken within the context exposed at paragraph 30 of the family report which states:

   Y stated “dad gave us the option of living with mum permanently or moving to Canberra with him”.  After a period of reflection and stating that he wanted things to remain the way they have been, Y further stated “maybe Canberra, but I don’t want to hurt either parent.”

10. The significance of the above paragraph is that Mr Silver committed at the start of the trial to remaining in Melbourne with the children should his application to relocate them be refused. 

11. At paragraph 33 of the report, Mr P notes of Y:

    Y explained that he has raised the issue with his father of not seeing much of his extended family if he lived in Canberra and is concerned his father won’t be able to see his parents on a weekly basis.  When he thought about the reduced time he would be spending with his relatives, Y stated “it’s not a straight forward decision – we’ve moved a lot”.

12. Not surprisingly, the seven year old Z was equivocal about the possible move to Canberra.  He told Mr P that he would miss his mother, his little brothers, and his dog but could see advantages and disadvantages in both Canberra and Melbourne. 

13. Mr P was challenged by counsel for the husband as to statements in paragraph 37 of the report which appear to be conclusions as to the father’s motives. That paragraph states:

    Mr Silver’s proposal to move to Canberra is less about his likelihood of finding employment and more about the stability and security of him and the children living with Ms E in her large home provided by her employer.  He has no job offer in Canberra but believes he has a better chance of finding work in the field of (omitted) if he relocates.  While Melbourne is a much larger city with a greater variety of employment opportunities than Canberra, Mr Silver has been unsuccessful for over six months in his search for work.  I do not know whether Canberra provides greater options for Mr Silver, but can see that he and the boys could live in a substantially sized house with Ms E for virtually no cost to them.

14. In cross-examination, Mr P agreed that there were other apparent reasons to support Mr Silver’s quest to move to Canberra, including financial and personal advantage in his own relationship with Ms E. 

15. I have re-read Mr P’s report on a number of occasions following the completion of the evidence.  He is at pains to set out what he sees as advantages and disadvantages in either party’s proposal for these three boys.  I fail, however, to discern any evidentiary connection to his final conclusions.  I can only surmise, as he said in evidence, that his determination was one on a “knife’s edge” with perhaps emphasis on his speculation as to firstly, the longevity of the father’s relationship with Ms E and, secondly, the duration of her employment in Canberra.  On the evidence before me, and in so far as I can say, I accept that the evidence of both Ms E and the father that their relationship is a committed and supportive one which has endured since 2009.  It follows that I place little weight on Mr P’s speculation in this regard.

Relevant Law

1. Parenting orders are provided for in Part VII of the Family Law Act 1975 (“the Act”). There is no specific reference to “relocation” in the Act itself. Rather, the task for the Court in all parenting matters is to determine orders which are in the best interests of the children and reasonably practicable in their operation. As such, a relocation of children is not prohibited in the Act nor is there a presumption against it. Rather, a proposal to relocate children will involve numerous considerations based on the evidence and the parties’ proposals (including the relocation proposal) in arriving at orders which are, on balance, in the best interests of the children. It is the best interests of the children which is the Court’s paramount consideration.[1]

   [1] Section 60CA of the Act

2. This consideration of the Court in determination of the children’s best interests is not at large. Rather, the Court is mandated to reference a number of factors set out in section 60CC of the Act. The framework for those pragmatic considerations is provided in section 60B which sets out the objects and principles of the legislation as follows:

   (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 their    parents having a meaningful involvement in their lives, to   the maximum extent consistent with the best interests of   the child; and

   (b)    protecting children from physical or psychological harm    from being subjected to, or exposed to, abuse, neglect or   family violence; and

   (c)     ensuring that 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 interests):  

   (a)    children have the right to know and be cared for by both    their parents, regardless of whether their parents are   married, separated, have never married or have never   lived together; and

   (b)    children have a right 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); and

   (c)     parents jointly share duties and responsibilities    concerning the care, welfare and development of their   children; and

   (d)    parents should agree about the future parenting of their    children; and

   (e)     children have a right to enjoy their culture (including the   right to enjoy that culture with other people who share   that culture).

3. The Court’s consideration and determination must follow a course stemming from a presumption provided in the Act[2] that parents have equal shared parental responsibility for their children.  Parental responsibility is defined[3] as “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”  Such responsibility usually manifests in the important long-term decisions to be made for children in matters such as religion, education, medical procedure and similar.  The distinction is made with the day to day decisions constantly made by parents for their children.

   [2] Section 61DA(1).

   [3] Section 61B.

4. The presumption of equal shared parental responsibility does not apply if there are reasonable grounds for the Court to find that a parent of a child (or a person who lives with a parent of a child) has engaged in abuse of the child, or another child in that home, or in family violence within the broad definition of that term in the Act[4].  Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interest of the children for the parents to have equal shared parental responsibility.[5]

   [4] Section 61DA(2)

   [5] Section 61SA(4

5. In the matter now before me, both parties propose orders for equal shared parental responsibility.  The significance, therefore, is that upon the presumption applying and not being rebutted, the Court is obliged to consider specific parenting regimes for the children and to determine whether those regimes be both in the children’s best interests and reasonably practicable.[6] Firstly, the Court must consider whether the children spending equal time between their parents is in their 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 children spending “substantial and significant time” with each parent is both in their interests and reasonably practicable. “Substantial and significant time” is defined in the Act[7] as follows:

   [6] MRR v GR (2010) 240 CLR 461

   [7] Section 65DAA(3)

   For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: 

   (a)the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays;  and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)the child's daily routine; and 

   (ii)occasions and events that are of particular significance to the child; and

   (c)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 parent.

1. The orders that the mother seeks in this matter are in accordance with the definition of “substantial and significant time”.  The status quo is a regime of substantial and significant time.  The orders that the father seeks, however, are for weekend and holiday time only and do not fit the definition of either “equal time” or “substantial and significant time”. 

2. Matters involving a proposed relocation of children, therefore, highlight the difficulties in the Court’s consideration where factors of distance, geography and travel logistics usually render proposed orders for equal time or substantial and significant time impracticable. 

3. Importantly and in summary, therefore, a proposal by one parent to relocate children is only one of numerous considerations relevant to the children’s best interests.  It follows that it is not proper to separate the issues of, firstly, with whom a parent should live and then, secondly and separately, whether a relocation should be “permitted”.[8]

   [8] Paskandy & Paskandy (1999) FLC 92-878 [86456] and Taylor & Barker [2007] FLC 93-345

4. The Courts have through a long line of authority attempted to extract a set of principles relevant to matters involving the potential relocation of children.  An examination of Full Court decisions[9] and, in particular, those significant amendments to the Act after 2006 extracts those principles including:

   (1) The children’s best interests remain the paramount but not the sole consideration for the Court, and such interests must be considered within the context of section 65DAA of the Act (reasonable practicability);

   (2) A parent wishing to relocate with children does not need to demonstrate “compelling” reasons;

   (3) The judge must consider all proposals together with the advantages and disadvantages of each but may also formulate proposals himself or herself in the children’s best interests;

   (4) Neither party carries an onus of proof to convince a court either for or against the proposed relocation;

   (5) The children’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such an adult “right” must ultimately defer to the children’s best interest.

Children’s best interests – section 60CC factors

[9] Taylor & Barker [2007] FLC 93-345, Sealy & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115 and Hepburn & Noble [2010] FLC 93-438.

Primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The mother argues that the children’s relationship with her has been problematic and disjointed by the circumstance of her returning to Australia and the children remaining for a considerable period in (country omitted).  X refers to this situation at paragraph 26 of the family report:

   He (X) thought that if he moved to Canberra with his father, he would see his mother on long weekends and during school holidays “like when we were in (country omitted)”.  However he stated the disadvantage of returning to those care arrangements was that there would be too long a gap between seeing his parents.  X explained that he likes the current arrangement and stated, “It’s been working well with no major problems.”  Although his father has told him it is up to him to decide where he wants to live, X stated, “I just want to see the parent I'm not with as much as possible.”  He admitted that the best option for him was for things to remain as they have been the past year or so.

2. At paragraph 32 of the report, Y is quoted: 

   Y stated it took a little while to adjust to living in Melbourne after (country omitted)...

3. In McCall & Clark[10] the Full Court noted that the Act does not offer a definition of “meaningful”. Their Honours concluded that the term was qualitative and prospective in its nature. That is, the Court is normally interested in making orders which preserve or better the quality of the relationship between child and parent rather than simply collating quantities of time in terms of days and hours. Similarly, it is the aim of the Court to make orders which provide a successful or meaningful relationship for children into the future. Obviously to do so will require an examination of the current state of those relationships. Common sense suggests that children might more successfully endure a relocation where they have a strong, established and successful relationship with the remaining parent than where they are to be moved from a relationship which is in its developing stage or a problematic one.

   [10] (2009) FLC 93-405

4. These children returned from (country omitted) only in December 2012.  Their relationship with their mother from her leaving (country omitted) in December 2009 had been one based on visits.  This regime had continued for some three years being formative years in these boys’ lives. 

5. In her affidavit sworn 18 February 2014 at paragraph 15 the mother says: 

   I believed that the proposed relocation would jeopardise the children’s ability to form strong and meaningful relationship [sic] with myself, their brothers, maternal grandparents and extended family, all of whom reside in Victoria. I believe that there would be long term effects on their developmental and emotional wellbeing if I am prevented from being with them. 

6. The mother was not cross-examined specifically as to this statement and I draw the inference that she believes her relationship with her children still to be in the developing stage. 

7. The father similarly does not reference the children’s relationship with their mother or, more particularly, whether that relationship has developed to being a “meaningful” one.  His lengthy affidavits filed 7 February and 24 March 2014 spend some time criticising the mother’s parenting.  Similarly, the father goes to some effort in demonstrating a close and established relationship between the children and Ms E but is strikingly silent as to his understanding of the relationship between the children and their mother.  His evidence in cross-examination was similarly of little assistance in this regard. 

8. Whilst this consideration is deemed a “primary” one, it remains simply one among many factors which – to which the Court must attribute weight and balance in determining the children’s best interests.  As discussed by the Full Court in Champness & Hanson.[11]

   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. 

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

[11] [2009] FamCAFC 96 at 103

1. The current arrangement whereby the children live in a shared care basis demonstrates that matters of family violence or abuse fortunately do not feature as an issue between these parents. 

Section 60CC(3)(a).  Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s view.

1. Neither party claims a strong preference by the children or any of them towards their own proposal.  Interestingly each of the children express a positive view of their time with their mother despite them spending five nights per fortnight with her in a two-bedroom unit inhabited by five children and two adults.  Conversely, the attractions of a large comfortable home in Canberra with a swimming pool and as provided by Ms E do not elicit unequivocal preferences in that direction.  These children are, in my view at best equivocal in their views at to their living arrangements.  The family reporter concludes in respect of the children’s views at paragraph 36 of the report thus:

   Consequently, the three boys have enjoyed spending time with their mother, half-brothers and extended family while remaining with their father for the major part of a fortnight.  During their interviews they expressed both satisfaction with the current arrangements and a desire not to lose contact with either parent, as was the case when they remained in (country omitted) with their father and their mother moved to Melbourne.

Section 60CC(3)(b) – the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children).

1. The nature of the children’s relationship with their parents is now a regular one with both.  They live in a shared care arrangement with nine nights per fortnight with their father and five with their mother.  They go to school from each parent’s home.  They have various other relationships in and from each parent’s home.  The evidence as a whole suggests that they have settled into a routine despite being provided with disparate accommodation and facilities.  All of the indications from the family report and the evidence of the parties is that these boys are enjoying spending block periods of time and being settled with their mother as opposed the “visiting” relationship from 2009 until 2012. 

2. The issue for the Court is that the father’s proposal would essentially return the nature of the relationship between the boys and their mother to that to which operated between 2009 and December 2012.  Time would be limited to weekends and school holidays.  Frequency of time would diminish.  The opportunity for the mother’s participation in the boys’ schooling and extra-curricular activities would be lost.

3. These same historical circumstances, however, dictate that the father has been the primary carer for these children since 2009 and during their formative years and this defines to a large degree their relationship with him and their reliance upon him as a parent. 

4. I am satisfied that the children have a close and attached relationship with Ms E.  This is not surprising given they lived as a family unit for a period in (country omitted).  Ms E impressed me as an altruistic, understanding and beneficial role model for the children. 

5. These boys have also had the opportunity of living for five days a fortnight with Mr L.  I did not have the same benefit of seeing and hearing him give evidence.  However, I received no evidence of a negative nature in respect of their relationship with him from the Family Report.

6. The children also seem to have a close relationship with their paternal grandparents.  Mr A. gave evidence.  He and his wife have lived in suburban Melbourne for 40 years.  They are prepared to uproot themselves from their stable home life, community and circle of friends and move to Canberra.  Mr A’s evidence suggested that the sole purpose of what might seem to be a dramatic move, is to maintain relations with the boys (and perhaps their son).  That they are prepared to go to these lengths (and apparently feel the need to do so in order to maintain their relationships with the three boys) may give some indication of the developing nature of the relationship between the boys and their own mother.  They have only had the benefit of more frequent time and regular time with the grandparents since their return from (country omitted) in December 2012.  The current regular relationship between children and mother has continued only since December 2012 after a hiatus of some three years during which the children and mother lived in different countries.

7. Although the possibility was not explored to any degree, I accept that this mother who is in a relationship and has two pre-school aged children would be unlikely to be able to move herself, her partner and those children to Canberra and particularly where both she and her partner are in established employment.

Section 60CC(3)( (c) the extent to which each of the children’s parents has taken, or failed to take, the opportunity:  (i) to participate in making decisions about long-term issues in relation to the children;  and (ii) to spend time with the children;  and (iii) to communicate with the children.

1. The evidence is that both parents have discharged their obligations in a responsible manner. 

Section 60CC(3)( (ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.

1. Both parents have contributed financially and according to their means towards the children’s financial support.

Section 60CC(3)(d) the likely effect on any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living. 

1. The father’s proposal represents a significant change in the regime for these children between their parents.  They currently live with their mother, her partner and their two young children for five nights per fortnight.  The evidence is that they are settled in and a part of this family unit.  This situation has continued for only approximately 18 months from December 2012.  The children were previously visitors to the mother or she to them.  The father’s proposal would again see the children visiting the mother on weekends, or she visiting them in Canberra with block periods of time only on four occasions each year during holidays.  The issue for the Court, therefore, is whether in its mandated course of consideration the children’s best interests are served by relationships of “substantial and significant time” with each parent, or, alternatively, living with the father and spending less frequent and generally shorter time by visits with the mother and limited to weekends and school holidays.

2. Relocation of children usually brings a plethora of changes for them over and above the changes in their relationships with parents.  There are changes of school.  There is the removal from peer group relationships, sporting and extra curricular activities and the establishing of new connections.  In the matter now before me, the parents seemingly agree that the children will need to suffer a change in their school whether or not they move to Canberra to live with their father.  They currently attend a private school in Melbourne.  The father says that he can no longer meet the school fees, and they will be changing schools if they remain in Melbourne. 

3. These are children who have already endured a recent substantial change in their living arrangements and in the nature of their relationship between their parents.  The evidence of both parents and of the family reporter is that they appear to be adaptable and resilient children who would cope with a further change by a move to Canberra.  The children appear to have rationally contemplated the possibility of such a change.  As mentioned above, they have not unequivocally expressed opposition to the father’s proposal.  Y refers to he and X having friends from (country omitted) now living in Canberra.  They have an established and successful relationship with Ms E and have previously lived in a family situation with her.  All the indications are that these children would cope with the change anticipated on the father’s application.  The remaining question is how they would deal with yet another change in the nature of their relationship with their mother and the developing relationships with their young siblings in their mother’s home?

Section 60CC(3)(e) The practical difficulty and expense of the children spending time with and communicating with a 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.

1. Flights between Canberra and Melbourne are frequent.  The father proposes to meet the costs of the children’s travel in the terms of the orders he seeks.  The travel time and the logistics may cause some inconvenience but are not prohibitive of the father’s proposal. Consequently, I am satisfied that each party’s proposals is reasonably practicable.

Section 60CC(3)(f)  The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs.

1. The father’s affidavit material tends to an emphasis on criticism of the mother’s parenting capacity and the facilities that she provides for the children.  However, the force of such criticism is diluted by the apparent success of the shared care regime that has operated since about December 2012 and that his application is initiated and focuses on his wish to relocate with the children to Canberra. He does not independently seek to change the children’s living arrangements on any perceived lack of capacity in the mother. The mother’s accommodation is cramped and comprises only two bedrooms for seven people.  The children do not indicate to the family reporter that they suffer either practically or emotionally during the five days per fortnight they live with the mother. 

2. I am satisfied generally that these two parents, assisted by their partners, are able to provide for the physical, intellectual, and emotional needs of the children. 

3. The father argues that his capacity to tend to his children’s needs would be enhanced in Canberra where he has the possibility of employment.  He says that he has applied for numerous jobs in Melbourne which apparently fit his qualifications but has consistently been unsuccessful.  The wife counters by observing that there must therefore be a regular potential opportunity for the husband to return to the workforce in Melbourne and that he should follow her lead and perhaps “lower the bar” in respect of his expectations and requirements in employment.

4. The husband says that the (omitted) in Canberra may offer him a broader potential market for employment in his particular fields.  He adduced evidence in this respect from his friend, Mr N.  As it stands, however, the father has no job or job offer in Canberra.  He agrees that a temporary “freeze” in (omitted) hiring does not help his chances.  He does say that he has completed an application for part-time service with the (omitted) which could involve (omitted) at (omitted), Canberra.  Service in the (omitted) is remunerated at $105.71 day or higher for (omitted) but very much on a part time basis.

5. The father also says that he and Ms E, could provide better for the children financially if they are relieved from the obligation of maintaining two homes.  Ms E is provided with rent-free accommodation as a part of her employment contract.

Section 60CC(3)(g)  The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristic of the children the Court thinks are relevant.

1. The evidence did not address this consideration.

Section 60CC(3)(h)  If the children are Aboriginal or Torres Strait Islander.

1. Not relevant.

Section 60CC(3)(i)  The attitude to the children, and the responsibilities of parenthood demonstrated by each of the children’s parents

1. The evidence before suggests that both parents generally exhibited a responsible attitude towards their parenting of these three children.  I harbour some concerns as to the tenor of the father’s affidavit material.  He is keen to set out his concerns in respect of the mother’s capacity yet apparently has conceded to a regime of shared care.  I have difficulty finding any positive comments in respect of the mother in his affidavits.  It is not, of course, unusual for litigants to attempt to shore up the cases by emphasis on the actual or perceived negative aspects of the other party.  In the matters concerning potential relocation, however, I must be satisfied that the primary parent would facilitate and encourage the children’s relationship with the remaining parent should the relocation be permitted.  Despite some residual concerns in respect of the father’s negativity having seen and heard him giving his evidence and considering the history from the time the parents separated in (country omitted) and the current regime of orders, on the balance of probabilities I am satisfied that he would facilitate the children’s time with the mother.

Section 60CC(3)(j) - Any family violence involving the child or a member of the child’s family

1. This matter is referenced above. 

Section 60CC(3)(l)  - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. 

1. The nature of family law orders is that they are prospective and therefore subject to changes in circumstances of the children or either of the parents and the usual vicissitudes of life.  

2. Matters involving a potential relocation of children are among the more difficult come before these courts.  The finities of usual parenting orders which can involve delicate and discreet apportioning of children’s time between parents are usually not available to matters involving relocation where issues of geography and travel logistics dictate that one parent will be the primary parent and the time for the children with the other be limited.  There is also impacts directly upon the parents.  If the relocation is not permitted then the primary parent often chooses to remain with the children thereby conflicting with their own life ambitions and relationships leaving them aggrieved and embittered.  Conversely, if the relocation is permitted then the remaining parent may be equally aggrieved by the sense of loss and the change in the nature and frequency of their relationship with the children.  It is often difficult to predict whether children (and a parent) will adapt successfully to a new environment, new schools and lifestyles.  Children’s views as to preferred parenting relationships may change accordingly. The requirements for children to travel for the purposes of contact with the remaining parent may conflict with their own commitments and choices in their new location.  All of these factors have the potential to lead to further litigation.  It is for parents, however, to understand that courts make orders which on balance are in the best interests of the children.  It is not the aim of the courts to reach ideal or optimum solutions.  Such results are simply unattainable given the recipe of facts and circumstances presented to the courts.  Once a determination is made, it is then for the parents to parent to the best of their ability and to discharge their parental responsibilities accordingly. 

Discussion and Conclusions

1. The factual platform before me and the arguments presented are such that I am obliged to agree with the author of the family report in that a determination of these children’s best interest is finely balanced and perhaps even on a “knife edge”.  The father’s proposal has a number of attractions.  He is and has been the primary parent for these children since 2009.  He understandably perceives himself as having a “right” of freedom of movement and to pursue his relationship with Ms E to its fullest potential including their desire to have children of their own.  He is unemployed in Melbourne and has been for some six or more months whereas Ms E has well remunerated employment and the move to Canberra would alleviate the need for them to maintain two homes.  The children are familiar and comfortable with Ms E and have had the benefit of previously living in a family unit including her. 

2. The children have not rejected the proposal of a relocation to Canberra.  They have previously experienced a relationship with their mother around distance and visits during school holidays and other odd times.  Arguably, they were able to maintain their relationship with their mother in these circumstances.  The expense and logistics of travel between Canberra and Melbourne are not prohibitive of the father’s proposal.  The evidence was unanimous in seeing these as resilient children who would cope with a further move to Canberra. All of these are factors which support the father’s application. 

3. Conversely, there are some negatives in respect of the father’s proposal to relocate the children which in turn can be seen as positives for the mother’s proposal.  The children currently live in a shared care relationship between their parents.  They have the opportunity to settle in and be involved in the mother’s family unit as opposed to being visitors for short, sharp periods as they were from (country omitted) and would be on the father’s proposal.  I am satisfied from the family report that, on the balance of probabilities, these children prefer to maintain frequent and regular time with both their parents.  They are content and happy in their mother’s home despite its physical limitations.  They have the benefit of establishing and maintaining relationships with their two pre-school siblings in the mother’s household.  I am satisfied that they have a good and beneficial relationship with Mr L. They are available to move easily and frequently between their two homes whilst successfully perusing their academic and social lives.

4. I am satisfied that it is not in the children’s best interests to make an order for them to spend equal time between their parents.  This has not been the status quo.  Neither party seeks such an order. The father has assumed the primary residential role now for some time and this is an established and comfortable part of these boys’ routine.

5. On consideration, however, I am satisfied that the best interests of these children are served by them continuing to live in a regime of substantial and significant time between their parents.  Each of the children gave indications to the family reporter that they benefit by this regime.  Z is noted at paragraph 35 of the report as: 

   Z is seven years of age and had spent his entire life in (country omitted) until moving to Melbourne over 12 months ago.  He admitted he likes living with his “little brothers” in Melbourne when he stays with his mother...  He stated that both his father and Ms E have jobs in Canberra and Ms E has a big house with security cameras, a spa and pool along with each of the boys having a bedroom.  However, if he moved to Canberra he would (1) miss his mother, (2) miss his little brothers and (3) miss (omitted) the dog.  At present his mother phones him every night and he sees her and his little brothers regularly.

6. At paragraph 29 and following of the report, Y is observed as:

   He stated he first realised his father wanted to move to Canberra to live with Ms E in January 2014.  Y explained that his father told him there are lots of job opportunities in Canberra and they can live in Ms E’s large house.  In addition, his father told him that he cannot afford the fees for him and his brother to remain at their current private school. ... Y stated “Dad gave us the option of living with mum or permanently with him.”  After a period of reflection and stating that he wanted things to remain the way they had been, Y further stated “Maybe Canberra but I don’t want to hurt either parent.” ... Y explained that he has raised the issue with his father of not seeing much of his extended family if he lived in Canberra and is concerned his father won’t be able to see his parents on a weekly basis.  When he thought about the reduced time he would be spending with his relatives, Y stated, “It’s not a straightforward decision – we’ve moved a lot.”

7. X is quoted in the report at paragraphs 26 and following:

   He thought that if he moved to Canberra with his father he would see his mother on long weekends and during school holidays “like when we were in (country omitted)”.  However he stated the disadvantage of returning to those care arrangements was that there would (sic) too long a gap between seeing his parents.  X explained that he likes the current arrangements and stated “it has been working well with no major problems.”  Although his father has told him it’s up to him to decide where he wants to live, X stated, “I just want to see the parent I’m not with as much as possible.”  He admitted that the best option for him was for things to remain as they have been the past year or so.

8. Whilst I am satisfied that these are resilient children who would cope with a further move to Canberra, they are also children who have spent three years until December 2012 in a “visiting” relationship with their mother.  The evidence of the mother and from the family report suggests that they are benefiting from the shared care arrangement which has now been operating for only 18 months.  Whilst the children do not make any unequivocal statement of preference as to their living arrangements, the suggestion from the report is that their father may not have left them with the option of the status quo but that the father may have given them only the options of living permanently with him in Canberra or with their mother in Melbourne.  This is not now the father’s position. On a consideration of all of the evidence and whilst these boys might be unequivocal in respect of the two options left to them, I am satisfied that all three prefer the more frequent relationship with their mother offered by the status quo. I am also satisfied that this remains a developing albeit very important relationship for these three boys.

9. I am satisfied that the father’s proposal is a reasonably practicable one but not, on balance, in the children’s best interests.  Whilst he has not been able to obtain employment in Melbourne, I am not satisfied on the evidence that there are specific or immediate employment opportunities for him in Canberra save and except the part time (omitted) position.  Further, the father argues from the point of the employment of Ms E.  She concedes, however, that her employment contract is not open‑ended and will cease in about four years.  Whilst it would be financially prudent for the father and Ms E to run one instead of two households, I am not satisfied on the evidence that the continuation of the current arrangements would be financially prohibitive of them continuing their relationship.  The father’s argument implies that he is satisfied that the boys can maintain or perhaps “establish” a meaningful relationship with their mother by way of infrequent short visits and less frequent block times during holidays.  I accept that the travel between Canberra and Melbourne is not onerous, and it perhaps follows that equally, there is no reason why the committed and successful relationship between the father and Ms E could also not continue to be successful if they were required to travel in the way they anticipate these boys doing. Given the mother’s role as a shared carer for the children it may be even practical for travel on a non frequent basis.  Indeed, if, as Ms E and the father depose, they intend to commence a family and she will either retire from or take leave from her employment, then there seems no reason why she could not relocate to Melbourne.

10. In all of the circumstances, I am satisfied that the children’s best interests are served by a substantial and significant relationship between their parents continuing.  Such an arrangement is not practicable on the father’s proposal.  Consequently, I intend to order in the terms of the mother’s proposal.

11. There then remains the issue of the children’s schooling given that they will be remaining in Melbourne.  The parties accept that their current financial circumstances will not allow continuing private school education for the boys.  The three boys appear to be resigned to this fact.  The mother proposes schools for the children closer to her home in the (omitted) area.  She alleges that these schools “provide education for the children in a better socio‑economic environment”. I am also asked to find that her preferred school may offer particular subjects unavailable at other schools There is no evidence of probity before me allowing me to make findings in the terms of the mother’s assertions.  She does, however, concede that zoning applies to the enrolment of students in government schools and presumably in accordance with a primary place of residence.  My orders will have the children continuing to live primarily with their father.  There is some merit in an argument, therefore, that a school closer to his home would cause less logistical inconvenience for the children.  On balance, therefore, I am of the view that the father should be responsible for choosing the children’s schools should the parties be unable to reach agreement.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 5 June 2014

(2010) FLC 93-438