Sinclair & Sinclair
[2022] FedCFamC2F 1376
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sinclair & Sinclair [2022] FedCFamC2F 1376
File number(s): ADC 3981 of 2017 Judgment of: JUDGE JENKINS Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – Parenting – unilateral relocation – where both parents capable and loving – reasonable practicability – meaningful relationship with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 62B, 65D, 65DA, 65DAA, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.14(b)
Cases cited: A & A: Relocation Approach [2000] FamCA 751
AMS v AIF [1999] HCA 26 (“AMS”)
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Heath & Hemming (No 2) [2011] FamCA 749
Koyroushs & Koyroyshs [2021] FedCFamC1A 54
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FamCA 1246
U v U [2002] HCA 36 (“U v U”)
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 2 September 2022 Date of hearing: 29, 30, 31 August 2022 and 2 September 2022 Place: Adelaide Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Read Solicitor for the Respondent: SJ McKinnon and Associates Counsel for the Independent Children's Lawyer: Ms Lee Solicitor for the Independent Children's Lawyer: Georgina Parker Lawyers ORDERS
ADC 3981 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SINCLAIR
ApplicantAND: MS SINCLAIR
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
10 November 2022
THE COURT ORDERS:
1.That the final parenting orders made 27 February 2019 be discharged.
2.The parties have equal shared parental responsibility for the child X born in 2015 (“X”).
3.Until the commencement of first term 2023:
(a)X live with the mother on Region B;
(b)X spend time with the father in Adelaide during term 4, 2022, on each alternate weekend from Saturday between 10.30 am and 11.00 am until Sunday at 3.00 pm or Monday at 3.00 pm if Monday is a public holiday;
(c)Handover to occur at the C Street Bus terminal in Adelaide with the mother to deliver X to and from the terminal.
4.From the commencement of first term in 2023:
In the event the mother remains residing on Region B:
(a)X live with the father in Adelaide;
(b)X spend time and communicate with the mother:
(i)Each alternate weekend from after school Friday until Sunday afternoon or Monday afternoon, if Monday is a public holiday, with handover times as agreed (except for the Father’s Day weekend when her time shall be suspended);
(ii)On the Mother’s Day weekend, if her time does not fall on that weekend, from after school Friday until Sunday afternoon, with handover times as agreed;
(iii)In the term 1 and term 3 school holidays, by agreement and failing agreement from the first Saturday until the second Wednesday, with handover times as agreed;
(iv)In the term 2 school holidays from the first Saturday until the second Saturday, with handover times as agreed.
(c)Handover to occur at the C Street Bus terminal in Adelaide at the commencement of time and at the Town D ferry terminal at the conclusion of the time unless otherwise agreed.
In the event the mother moves back to Adelaide
(a)X live with the parents during school terms and term holidays on a week about basis, with changeover at the conclusion of school on Friday (or 4.00 pm if X is not at school);
(b)Handover occur at school or otherwise at Bus Stop E, F Street, Suburb G or such other location as agreed.
5.Regardless of where the parties live, X spend time and communicate with the parents as follows:
(a)In the Christmas school holidays:
(i)With the father from the first Saturday until 2.00 pm on 24 December;
(ii)With the mother from 2.00 pm on 24 December until 2.00 pm Christmas Day;
(iii)With the father from 2.00 pm Christmas Day until 1.00 pm on 14 January;
(iv)With handovers as follows:
A.On the first Saturday at the C Street Bus terminal (or Bus Stop E, F Street, Suburb G if the mother is living in Adelaide);
B.On 24 and 25 December at the mother’s parent’s home in Suburb H;
C.On 14 January at the Town D ferry terminal (or Bus Stop E, F Street, Suburb G if the mother is living in Adelaide);
D.As otherwise agreed.
(b)By FaceTime on each of the parent’s birthdays for up to one hour with the birthday parent to instigate the call;
(c)By FaceTime at any reasonable time if X so wishes;
(d)Otherwise as agreed between the parties.
6.Commencing from Term 1 2023:
(a)X attend J School at K Street, Suburb L;
(b)The parties share all the costs associated with her schooling, including school fees, uniforms, text books, stationery and excursions;
(c)The parties be restrained from enrolling X in any other school without the prior written consent of the other party;
(d)The parties be restrained from moving X’s residence from the Adelaide metropolitan area without the prior written consent of the other party.
7.That either party be at liberty to travel interstate with the child on giving the other parent at least two (2) weeks’ notice of their intention to do so and upon providing to the other parent the details of their travel itinerary.
8.That in the event of the father travelling to Queensland the father undertakes that X shall not be left alone and unsupervised with the father’s brother Mr M.
9.That X be able to spend time with the mother for traditional Country N days upon the mother giving the father 14 days’ notice of such events and that the father’s time with X be suspended on those days, limited to no more than three (3) days in each year and with the mother to provide an equivalent make up time to the father.
10.That upon X turning 10 years of age the parties shall mediate arrangements for the commencement of X’s high school education.
11.That each of the applicant and the respondent shall be entitled to obtain copies of X’s kindergarten and school reports, progress cards, photographs and newsletters at their own cost and shall be entitled to attend all parent/teacher nights and school sporting and extracurricular activities that are ordinarily attended by parents and family members.
12.That each of the applicant and the respondent shall immediately notify the other of them in the event that the child X suffers any serious medical illness or injury requiring hospitalisation or ongoing medication and that each of them shall be at liberty to visit the child X in hospital.
13.That the parties will jointly sign an Application for the issue of a Passport for the child X (with the cost to be shared) with such Passport to be held by this Honourable Court and released to either of the applicant or respondent upon the Registrar of this Honourable Court receiving the joint written consent of the parties.
14.That the parties communicate via email or SMS or the App Cozi for the purpose of exchanging any relevant information pertaining to the child X.
15.That each of the applicant and the respondent be restrained and an injunction be granted restraining each of them from physically disciplining the child X.
16.That each of the applicant and the respondent be restrained and an injunction be granted restraining each of them from denigrating the other of them in the presence of the child X and from allowing any other relative or family member to do so.
17.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
18.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sinclair & Sinclair has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
introduction
This is a parenting dispute regarding the care arrangements for seven year old X (“X”).
In or about June 2021 the respondent mother (“the mother”) unilaterally moved with X from Adelaide, where both parties were residing, to Region B, a town off the Region O, about two hours south of Adelaide.
The applicant father (“the father”) remains living in Adelaide and seeks that X return to live there.
If the mother returns to Adelaide he proposes X live in a shared care arrangement. In the alternative, should the mother stay on Region B, he proposes that X live with him and spend time with the mother each alternate weekend during school terms as well as substantial time in the holidays.
background
The parties met in Brisbane in 2005, married in 2007 and separated in September 2015.
X was born in 2015.
At the time of separation the parties were living in Brisbane.
On or about 16 September 2015, being the date of separation, the mother unilaterally moved to Adelaide with X without notice to the father. The mother grew up in Adelaide and wished to return to her family who remained there.
In order to maintain a relationship with X, the father chose to also move to Adelaide. He obtained rental accommodation in Suburb P, a suburb of Adelaide and found employment in Suburb Q as an allied health worker.
The parties were unable to agree to arrangements for X going forward and the father issued proceedings in the then Federal Circuit Court of Australia.
On 27 February 2019 the parties agreed to final parenting orders (“the final consent orders”) which provided for a gradual build-up of time between the father and X. This was to eventually result in X living in a shared care arrangement as and from Term 4 2022.
In or about February 2019 the mother also commenced a relationship with Mr R, who lives and works on Region B. Mr R is 41 years old and has no children of his own.
In February 2020 the mother emailed the father and indicated she wished to move to Region B. The father raised his concerns about this move with the mother by return email.
On 9 March 2021 the mother again emailed the father in regard to moving to Region B. She advised that a property for rent in the town had been made available much earlier than she expected. She proposed that X move with her to Region B but if they could not come to an agreement that X live with the father during the school term in Adelaide and spend time with the mother on alternate weekends and during school holiday periods.
The father responded on 15 March 2021 indicating he preferred X to stay in Adelaide and that he would agree in principle to the mother caring for X on alternate weekends and school holidays.
On 29 March 2021 the mother emailed the father and thanked him for agreeing to care for X during the school term and set out a regime for holiday time. However it would appear that the parties were unable to agree on the specifics of that holiday time, with the father seeking sufficient time so as to be able to take X to Queensland to visit his extended family.
The mother subsequently moved to Region B in April 2021.
X continued to spend time with the parties pursuant to the final consent orders which at that time provided for X to spend time with the father in week one from Sunday to Friday and in week two from Thursday to Friday.
The mother travelled back to spend time with X when she could, otherwise X lived with the mother’s extended family in Adelaide during the mother’s time.
The mother says that X became distressed during the course of the following months and was not coping with this arrangement and consequently on 16 June 2021 the mother relocated X to Region B without notice to the father.
The mother also moved X from her school at J School in Suburb S, to the Region B School in Town T.
The father consequently filed his application in this matter on 21 June 2021 seeking X be returned to Adelaide, that she live with him and recommence at her old school.
The mother filed a Response seeking to be able to remain on Region B with X.
Since that time X has spent term time with the father from approximately 10.30 am Saturday until mid to late afternoon Sunday each alternate weekend and for the majority of the term school holidays as well as more than half of the Christmas holidays.
X’s time was limited with the father to one overnight on alternate weekends due to the timing of the ferry between Region B and the mainland of South Australia and the father’s work.
The parties were ordered to participate in a Child Impact Report which was prepared by Ms U and dated 11 May 2022.
The matter was originally listed for Trial to commence on 24 August 2022. However at a compliance and readiness hearing on 4 August 2022, the Court was advised that Ms U was not available to give evidence. It was determined that she would be available from 31 August 2022 and consequently the Trial was relisted to commence on 29 August 2022. The parties did not raise any issue with the matter being ready to proceed.
Nonetheless, at the commencement of the Trial on 29 August 2022 the mother’s counsel made an application on behalf of the mother that the matter be adjourned for a full Family Assessment Report. It was put that the Child Impact Report was only a limited report and the matter required a more detailed assessment. This was refused as I was of the view that the Child Impact Report contained sufficient information on which to determine the child’s best interests and that it would not otherwise be in the child’s best interests to have the matter adjourned.
At the conclusion of the evidence and cross examination of Ms U, counsel for the mother indicated they were considering making a further application for adjournment on the same grounds. I advised the mother’s counsel that having heard the evidence of Ms U I was still not convinced that a full Family Assessment Report was required; however I would reconsider the issue when assessing all the evidence for the purposes of this judgment.
Having now done so I remain of the view that there is sufficient evidence before the Court on which to determine what parenting orders are in X’s best interests. Accordingly, orders will not be made for a full Family Assessment Report and the matter will be determined on the evidence presented at Trial.
material relied upon
The father relies upon:
(a)His Amended Initiating Application filed 2 August 2022;
(b)His Trial affidavit filed 2 August 2022; and
(c)The Child Impact Report of Ms U dated 11 May 2022.
The mother relies upon:
(a)Her Amended Response filed 22 August 2022;
(b)Her Trial affidavit filed 23 August 2022;
(c)Her Financial Statement filed 22 August 22;
(d)An affidavit of her sister Ms V filed 23 August 22;
(e)An affidavit of her partner, Mr R filed 23 August 22; and
(f)The Child Impact Report of Ms U dated 11 May 2022.
The Independent Children’s Lawyer relied upon the Child Impact Report of Ms U.
the evidence
It has not been possible to include every aspect of each of the parties’ evidence in this judgment. However, I have taken all the evidence into account. Whilst I may not mention something specifically in these reasons that does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The Father
The Court is generally reluctant to made adverse credit findings in relation to parents in parenting proceedings. Nonetheless I found the evidence of the father to be almost entirely unreliable. The father struggled to recall details and to answer questions and seemed at times to be agreeing with propositions for the sake of it.
The Mother
On the whole I found the mother’s evidence to be equally problematic. Her explanations as to why she needed to move to Region B made little sense. She denied moving there due to her relationship with Mr R and indeed on her own evidence appeared to have broken up with him at the time she did move. She gave various other explanations for the move, these included for her career, because X loved it there, because of housing and because of community support, all of which were somewhat unconvincing. I will return to this evidence later in my reasons.
Mr R
Mr R, the mother’s partner, gave his evidence in a forthright manner. Whilst the mother seemed to struggle with dates around when she was and was not in a relationship with Mr R, he was clear that they had been separated at the time she moved to Region B. Indeed they separated in January 2021 and resumed their relationship in August 2021. He also confirmed they did not have any concrete plans to move in together. Further to this, he was recalled to give some limited but very helpful evidence about the ferry timetable.
Ms V
Ms V, the mother’s sister, was not required for cross-examination and accordingly her evidence is unchallenged. It is clear in her affidavit that she has a close and supportive relationship with the mother and a loving relationship with X and that she visits Region B as often as she can. She corroborates the mother’s evidence with respect to her relationship with Mr R and to the extent that it is relevant that she has not seen X suffer the bus sickness that the father asserts. She also attests to the father’s conversations with X about Mr R, which I shall return to further down in this judgment.
Ms U – Family Consultant
The mother’s position was that the Child Impact Report, being a limited report, did not provide sufficient information to the Court on which to determine the best interests of X.
In her evidence, Ms U was at pains to point out that the report was limited in its scope and that ideally the matter should be the subject of a full Family Assessment Report. As a result I queried the necessity in this case for a more fulsome report and how such a report would differ to that which was already prepared. Ms U said that in addition to providing more time for the interview and writing process, the Family Assessment Report would also include extended family members as well as more extensive enquiries such as with X’s school and any medical practitioners treating the child.
Nonetheless, I have determined that a more comprehensive report is not necessary in the circumstances of this case. Whilst Ms U may have a different view, pursuant to In the Marriage of Hall [1979] FamCA 73 [24], I am not bound by her opinions.
This case does not involve allegations of substance abuse, family violence or mental health. X does not have any special needs. It is common ground she is progressing well at school, as she had been at the previous school. She has made friends easily and has no apparent social issues. She is not receiving ongoing treatment by any medical or psychological health practitioners. Whilst there may have been a benefit to speaking to extended family, this would not in my view justify a full Family Assessment Report.
Ms U conducted interviews with the parents over the phone but later met with them in person and made observations of X with both parties.
Although Ms U had not read the Trial material, I advised Counsel for the mother she could put any matter arising from that material to Ms U in the witness box.
In my view the report provides sufficient information with respect to X, her views and her relationship with both parents so as to enable the Court to make a decision about her future living arrangements.
Furthermore, adjourning the matter for a full Family Report would likely result in a lengthy delay and this would not be in X’s best interests.
the relevant legal principles
Relocation cases are often the most difficult cases for the Court to decide.
It is abundantly clear that whilst this matter involves a question of relocation, this is not a separate category of parenting cases. The law must still be applied, referring to the objects and principles of the Family Law Act 1975 (Cth) (“the Act”), the ‘best interests’ considerations pursuant to s 60CA of the Act, and to the rights of parents, including their right to choose where to live.
I am required to evaluate the parties’ competing proposals and to consider the advantages and disadvantages to the child of each of those proposals. The question of relocation is not to be considered as a separate or discrete issue, but it is just one of the proposals for the child’s living arrangements that I must take into account. These matters are set out in cases including AMS v AIF [1999] HCA 26 (“AMS”), A & A: Relocation Approach [2000] FamCA 751 (“A & A”), U v U [2002] HCA 36 (“U v U”) and Taylor & Barker [2007] FamCA 1246.
As observed by Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at paragraph 101:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I note the following propositions as set out by Her Honour Justice Boland in Morgan & Miles [2007] FamCA 1230 (“Morgan & Miles”):
•the best interests of the children “remain the paramount but not sole consideration”;
•the parent seeking to relocate does not need to demonstrate a “compelling reason”; and
•the best interests of the children must be weighed and balanced with the “right” of a parent to freedom of movement.
I observe however that the Full Court in Koyroushs & Koyroyshs [2021] FedCFamC1A 54 [80] has made it clear that the principles set out in Morgan & Miles are not intended to be a checklist or even a definitive guide.
I also note neither party bears any onus to show why X should be permitted to remain on Region B or be required to return to Adelaide. My determination is to be made having regard to the whole of the evidence.
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
I must also weigh and consider the additional considerations set out in s 60CC (3) of the Act. I will turn to those primary and additional considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
parental responsibility
The parties agree that there should be an order for equal shared parental responsibility.
It is my view that an order for equal shared parental responsibility is appropriate in this matter.
Accordingly, pursuant to s 65DAA of the Act, I must consider firstly whether equal time is in X’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider whether substantial and significant time is both in the child’s best interests and is reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child’s best interests and reasonably practicable before consideration can be given to the order being made (emphasis added).
I am not required to consider the child’s best interests or questions of reasonable practicability in any particular order. However, as suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115 at paragraph 38 a logical approach would be to:-
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
I shall follow that logical approach.
the considerations pursuant to section 60cc of the act
The child’s best interests are paramount. In determining those best interests, there are two primary matters or considerations, and several additional matters or considerations I am required to take into account.
I have set out above the two primary considerations pursuant to s 60CC(2) of the Act. I must also weigh and consider the additional considerations set out in s 60CC(3) of the Act.
The primary considerations
Neither party asserts the other constitutes a risk to X.
There is no dispute in this matter that she would benefit significantly from having a meaningful relationship with both of her parents.
What appears to be in dispute is what constitutes a meaningful relationship.
The mother asserts that her proposal will provide for a quality relationship with the father but is it meaningful?
In the case of McCall & Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court of Australia observed that whilst the Act does not provide a definition of the word “meaningful”, they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Counsel for the mother emphasised that her Honour said it is a qualitative and not a strictly quantitative adjective.
In the case of Godfrey & Sanders [2007] FamCA 102, Kay J noted that:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
That was subsequently endorsed by the Full Court in McCall.
A child’s relationship with their parents despite living in different geographical locations, may continue to be meaningful provided:-
(a)regular and consistent face-to-face time as well as communication is maintained; and
(b)the live-with parent is able to encourage and promote that relationship.
The issues raised in this case by the father include that:-
(a)time is limited to one overnight (or possibly two) on a weekend during school terms;
(b)the mother will not actively encourage and promote his relationship with X; and
(c)the mother may choose to move yet again.
He says, accordingly, that the quality of the relationship between himself and X will significantly diminish. Those concerns are shared by Ms U.
It is the mother’s case that notwithstanding living on Region B, that X will have a meaningful relationship with the father. She says that X could spend more time with the father, if he made arrangements not to work on the Friday and that he could spend additional time with X if he travelled to Region B to visit her.
Whilst I am satisfied that regular face-to-face visits and communication can occur, I am concerned about the mother’s commitment to fostering the father/child relationship. I accept the mother’s proposal, whilst not providing for an optimal relationship, would in theory enable a meaningful relationship to continue between the father and X. However the mother’s own actions in unilaterally moving to Adelaide and then unilaterally moving to Region B, call into question her bona fides in supporting the relationship.
I will return to the issue as to the mother’s attitude towards X’s relationship with her father further down in my reasons.
The additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
When interviewed for the Child Impact Report in May 2022 X reported that she missed her friends at J School and that she wished to live with the father.
The mother was concerned that X’s views were coloured by the fact that she had just spent the holidays with the father and had been brought to the interviews by him.
The father also conceded that he said to X that if she does not move back to Adelaide he may move back to Queensland. Furthermore he agreed she knew his views about wanting her to return to J School. I accept both of these comments may have influenced X’s views.
X’s views may also have been impacted by the fact that she appears to have spent little time with her friends from J School when visiting her father. In this regard the father does not seem to have understood the importance of facilitating X to maintain these friendships.
Nonetheless, X’s views, at aged seven, are not determinative and are only one of the additional considerations to be taken into account.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
In Ms U’s report she observed that both parents had strong and loving relationships with X.
The parties separated when X was only nine months old. Although the mother had been the primary carer the father has steadily been increasing his time.
It is not in dispute that in February 2019 the parties agreed it would be in X’s best interests to ultimately live in a shared care arrangement and therefore I presume both accepted she had a strong attachment to each of them.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
The parties have both been involved parents, who have generally engaged in making decisions regarding the care of X.
The father should be commended for uprooting his life in Queensland and moving to Adelaide so as to be near X and to maximise his time with her. However, having said that I am not convinced that he has taken every opportunity to spend time with her since the move to Region B. Indeed the evidence was that he has not been there at all in the last 15 months.
Furthermore the father said his time with X was limited to the Saturday night because he worked on Friday nights. The father, who is an allied health worker, gave evidence that he worked Wednesday to Friday and alternate Saturdays from rooms made available by his employer. The perplexing part of his evidence was that there appeared to be no particular reason he could not work on Monday or Tuesday instead of the Friday, provided rooms were available but that he had not asked. On this basis there seemed no reason he could not have spent time with X on the Friday night as well as the Saturday or indeed why he could not have travelled to Region B to spend additional time with her there.
Furthermore, the father failed to attend X’s dance concert and has had little, if any, engagement with her new school, apart from a phone call. It appears to me that the father resented the mother’s move and did not want to do anything to support this even if it meant forgoing opportunities to spend time with X. Whilst on one level this was understandable, given he had moved across the country to be with X only to have the mother move again, it was not child focused and showed a lack of insight into X’s needs.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The father has been assessed by the Child Support Agency to pay child support to the mother. It was put to the father that he had been in arrears at one point. His evidence on this issue was confusing and unconvincing. He said he made payments when he received letters requesting lump sums from the Child Support Agency which sounded like he paid upon demand rather than on a regular basis.
I was also unimpressed with the father’s evidence about retaining the family tax benefit, which he had been receiving as though the final consent orders were still being implemented. The father’s evidence was that he believed he was entitled to be paid family tax benefit consistent with the time arrangements in the final consent orders because they had not been discharged. The father did not acknowledge he had any duty to notify the relevant agency of the change in living arrangements or that he was otherwise depriving the mother of financial support she was entitled to be paid given she is currently the primary carer of X. This was much to his discredit.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
X has a close and strong relationship with both her parents.
Despite spending limited time with her father since June 2021 X has retained a strong connection with her father and appears to be missing her regular time with him.
I note that Ms U’s would not recommend a change of X’s living arrangements without a full Family Assessment Report, due to the potential impact on X. For the reasons already stated in this judgment, I am not convinced that a full Family Report would provide significantly more information as to the potential impact on X of a change of living arrangements. In any event, I have already determined that on balance it would not be in X’s best interests for the matter to be adjourned for that process to occur.
I accept that X would necessarily be impacted by a change of living arrangements. If X were placed in her father’s primary care she would miss her mother, who has been her primary carer; however this would be ameliorated to some degree by living with her father and spending time with her extended maternal family in Adelaide. Although X was reported to be distressed when the mother moved to Region B, it is clear that at that time X was living with extended family for large parts of her week rather than with either parent. X would also miss her new school, new friends and her community, where she has been living for 16 months. These are all matters I take into consideration in my determination in this matter.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The father’s evidence is that a round trip on the ferry (with a car) to Region B costs $300 or thereabouts, although the mother says that local residents and their family members receive a discount.
Both parties seem to have capacity to afford the round trip by ferry on a fortnightly basis. The mother has excess of $300 per week and the father $400 per week. Further to this, the mother does not take her car on the ferry but travels with X by bus to Adelaide.
The father asserts that X suffers travel sickness on the bus trip. The mother denies this and her sister, X’s Aunt, has not observed this. The father also asserts that the travel is very tiring for X, as it takes about two and a half hours. I have no doubt that regardless of activities and potential opportunities to sleep that this would be a tiring trip for a seven year old.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
For the most part, each parent acknowledges that the other parent is able to meet X’s needs. This is inherent in my view in the final consent orders.
I accept the father’s evidence that prior to X being moved to Region B, he did not work evenings, when X was in his care. I am not critical that the father placed X in after school care on some occasions as this is the reality for many working parents.
Otherwise the father’s evidence was that he spends much of his time with X doing activities like going to the beach, bike riding, rock climbing, going to museums as well as holidaying around the state and in Queensland. I have no reason to question this evidence.
As to X’s emotional needs, I have already identified some concerns about the father; namely his failure to arrange for the Friday night to spend time with her, or to visit her on Region B and/or to facilitate her friendships in Adelaide. I note also however, the allegation that he has questioned X about whose bed she was sleeping in and who was assisting her with toileting and the like. However these concerns seem to have arisen in the context of the move to Region B, the father’s reduced time with X and to a degree because the mother was not upfront with the father about the involvement of Mr R in her life.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
The matters relevant to this consideration have already been substantially canvassed. I note that X has spent most of her life living in Adelaide where the mother grew up and where her extended maternal family still reside.
If the children are Aboriginal or Torres Strait Islander children
This is not a relevant consideration.
Attitude to the children, and to the responsibility of parenthood demonstrated by each of the children’s parents
Both the parties appear to be good parents, who love their child and take their parental responsibilities seriously.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
Happily, this is not a relevant consideration.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is preferable to make orders that will end the litigation between the parties, and not lead to further Court hearings.
Any other fact or circumstance that the Court thinks is relevant
It is undisputed that, in determining a parenting matter in which one parent wishes to relocate, the children’s best interests remain the paramount, but not the only consideration. It is settled authority that parents have a right of freedom of mobility, but that right “…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”, pursuant to the High Court’s decision in U v U.
In AMS, Kirby J said at paragraph 145:-
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.
(footnotes omitted)
His Honour also said that the Court is not obliged to ignore parents’ legitimate interests and desires, and cannot view the children’s best interests “…in the abstract, separate from the circumstances of the parent with whom the child resides.”
In U v U, Kirby J went onto say further at paragraph 146:-
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
In A & A, the Full Court of the Family Court of Australia observed that the ultimate issue in a relocation case is of course the best interests of the children, and “to the extent that the freedom of a parent to move impinges upon those interests then it must give way”.
The mother has taken it upon herself to move X not only once, but twice, without the father’s consent.
Whilst not required to provide a compelling reason for the move, the context of a move may shed light on whether the moving parent understands the importance of the relationship between the child and the parent left behind and whether they are likely to do all they can to maintain that relationship.
The mother’s reasons for moving raise many concerns in this regard.
Firstly the mother’s evidence is that she had a better chance of obtaining employment on Region B and that she had tried to obtain work in Adelaide to no avail. In addition, her evidence was that it was difficult for her to find a job because of the way the care arrangements were structured for X.
When this was explored further in cross-examination it became apparent that the employment the mother obtained on Region B was in a restaurant. The mother stated that she was unable to obtain work in a restaurant in Adelaide, however it came to light that she only applied to four businesses and that the majority of these were not in fact restaurants. There was also no corroboration for any such applications.
I cannot find on the evidence before me that the mother made any bona fide attempt to obtain work in a restaurant in Adelaide or that she had better employment opportunities on Region B. There are many more restaurants in Adelaide than on the Region B and many of those would offer work during school hours. In addition, the mother potentially had family support as well as school aftercare and/or the support of the father in the event she needed to work outside of those times.
The mother’s second reason for the move was that X had fallen in love with the Region B. However it was apparent on the evidence that X had only been to the Region B twice, for two weekends. Even accepting that X had fallen in love with the Region B after only two visits, she would have had no concept of what actually living on the Region B would entail.
The third reason was housing. The mother said her home in Adelaide was being demolished and she was not in a position to find private rental as a single mother. However, she conceded under cross-examination that the home she lived in was owned by her brother and he had not actually set a date for any such demolition. Indeed she said he was very secretive about such things. It appears her desire to move arose from construction being done next door and the removal of a fence. Whilst this may have been the impetus for the move, there was no logical reason why this had to be Region B. Indeed, I fail to see how she was any better placed to find accommodation on Region B than in Adelaide. There is simply no evidence that this was the case. Indeed the mother’s evidence was that she obtained her rental by pure happenstance when she approached a stranger on the ferry travelling over.
The fourth reason was community support. I understand the mother volunteered on Region B following the bushfires in 2020 and that she may have experienced a strong sense of community as a result. However, the mother had strong family support in Adelaide, this being where she grew up and the whole reason for the first move. She also gave evidence about community support in Suburb S, in particular Mr R’s family who lived nearby. I do not accept that Region B provided the mother with more support than she had in Adelaide.
The mother also asserts the cost of living on Region B is much cheaper. I have no independent evidence of the cost of living on the Region B versus the differential in wages between the Region B and Adelaide. I place no weight on this assertion.
Strangely although the mother’s partner lives on Region B she says this was not one of the reasons she moved there. Indeed on the evidence before me they were separated at the time she moved. One possibility is that she moved there, at least in part, to pursue this relationship. I note they have since reconciled. It is unclear to me whether this was a primary motivation but I cannot discount that it featured in her thinking.
Whilst I repeat again that in a relocation case the moving party does not need to show a compelling reason for the move, I am concerned that the mother moved on little more than a whim and in doing so showed a blatant disregard for the relationship between the father and X. This concern is even more heightened given the mother had already moved away from the father when X was only nine months old and that she believed the relationship at that time could be maintained by way of photos and texts with the father.
I accept the mother wishes to remain on Region B, a place where she is settled in the community, where she has employment, has started a business and where she feels well supported and that moving back would make her extremely unhappy, however it must not be forgotten that the mother finds herself in this situation because she unilaterally moved there in the first place. Furthermore, there was no independent evidence adduced by the mother that she would struggle to cope emotionally if she were required to return to Adelaide.
Although in theory the father could move to Region B, there is no evidence as to how easily he would find work as an allied health worker. He also currently has a job which enables him to be available to care for X and finding a similar job in such a small community may well be difficult. Such a possibility was never put to the father in any event. Furthermore, the father has already moved his entire life once to be closer to X and in the circumstances of this case I do not consider it would be reasonable to expect him to do so again.
reasonable practicability
In determining whether it is reasonably practicable for a child to spend equal, or substantial and significant time with their parents, section 65DAA(5) sets out the following:-
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
If the parties remain living where they are, equal time obviously cannot occur. The practical reality is that overnight time would have to be limited to one or two overnights per fortnight (in the father’s case assuming he can rearrange his Friday night work).
If the parties live in Adelaide, in reasonable proximity to each other, then a shared care or week-about arrangement would be reasonably practicable.
Although the mother indicated she would move to Adelaide, if it was determined X should live there, I was left with the impression that this was by no means a certainty. The mother said she would have difficulty living in Adelaide as she would have nowhere to live and it would be difficult for her to get a job. She said living with family was not an option.
Although her brother appears to own the house in which the mother’s parents live and the house in which she lived, and he may well provide her with support to find housing, there is no actual evidence to that effect. Nonetheless, the mother has now qualified as a hospitality worker and has some experience behind her. She has also been working as an allied health worker. I find on the balance of probabilities she would be able to find work in a restaurant, somewhere in the Adelaide area and on that basis she would be able to find rental accommodation.
consideration of the competing proposals
Consideration must be given to each of the proposed arrangements of the parties. I am, of course, not bound by those proposals.
The mother proposes that X live with her on Region B and spend alternate weekends and a significant part of the holidays with the father.
The father proposes that X live in a shared care arrangement between the parties in Adelaide or in the alternative that X live with him in Adelaide and spend alternate weekends and a significant part of the holidays with the mother.
The advantages to X living on Region B with the mother are:
(a)The mother has a job at the local restaurant;
(b)The mother has rental accommodation from which she operates hospitality classes and allied health lessons;
(c)X is settled in the local school where she has attended for 16 months and has made friends;
(d)X is involved in dance on the Region B;
(e)X has a puppy on the Region B.
The disadvantages if X remains living on the Region B:
(a)X’s time with the father would be limited to one or at most two nights each alternate weekend and during holidays (unless he travels to the Region B);
(b)The father is unlikely to regularly visit X and therefore would not be involved in her school, extra-curricular and other day to day activities;
(c)The father may choose to move back to Queensland if he finds himself living in a city where he has no family or friends and can only spend limited time with X which would further reduce her time with him;
(d)X would miss her dad;
(e)X would continue to miss her friends in Adelaide;
(f)X would have limited time with extended maternal family as the mother’s sister only visits once per month;
(g)X would have to continue to make the long trip to and from Region B each fortnight;
(h)The parties would have to continue to bear the costs of the travel each fortnight.
The advantages to X returning to Adelaide:
(a)X could spend substantial and significant time with the father;
(b)The father would be involved in X’s day to day life and school;
(c)If the mother also returns to Adelaide, the parties could have shared care;
(d)X would be able to spend regular and frequent time with her extended maternal family in Adelaide;
(e)X could return to her old school;
(f)X could resume her old friendships.
The disadvantages to X returning to Adelaide:
(a)If the mother does not return she would have only limited time with the mother;
(b)If the mother does not return X would have to continue to make the long trip to and from the Region B each fortnight;
(c)If the mother does not return the cost of travel for X would remain;
(d)If the mother does not return X would miss her puppy;
(e)X would miss her new friends from Region B;
(f)X would miss her dance school and potentially have to start afresh.
determination
Balancing all the considerations, taking into account the advantages to X and the disadvantages to her of the competing proposals, I am satisfied that X’s best interests are met by returning to live in Adelaide. In the event the mother chooses to return to Adelaide it would be in X’s best interests to live in a shared care arrangement between the parties. If the mother chooses to stay on Region B, X should live with the father and spend alternate weekends with the mother. This should be Friday to Sunday if the mother is able to travel to collect X from Adelaide after she finishes school otherwise from Saturday morning to Sunday afternoon.
The mother seemed ambivalent about the concept of moving back to Adelaide. She said it would take her six months to save up for the move. In any event, it would be appropriate for X to see out the school year at her current school. This will also enable her mother to save to return, if she so chooses. The new arrangement should commence in Term 1, 2023.
In the event the mother does not move to Adelaide, I am satisfied X’s best interests will be met by spending alternate weekends with the mother, ten days in the first and third term holidays, one week in the Term 2 holidays and for one half of the long summer holidays as proposed by the mother. The father conceded that one week was sufficient for him to be able to take X to Queensland, which he could do mid-year and during the Christmas period. The father also agreed to the long summer proposal put forward by the mother, noting that the mother will be in Adelaide for Christmas itself to spend that time with her family.
If the mother remains on Region B then the handover should be at the bus terminal in Adelaide at the commencement of time and at the Town D Ferry terminal at the end of the time. This way the two hour trip to and from Town D is shared. It will also enable the father to potentially work (on a more limited basis) on Friday and will hopefully mean the mother’s time with X is not reduced at each end by travel. X may also benefit from one trip being by car if her father was able to drive her to Town D, if she does indeed get travel sickness on the bus. The mother will otherwise be responsible for the travel on the ferry as well as to and from Town T on Region B. If the mother chooses to remain on Region B then in my view she should be responsible for paying for and facilitating X’s travel on the ferry.
Given the ferry timetable is seasonal and also subject to change, it is not possible to specify precise handover times in the event the mother remains on Region B. However, the parties appear to have been able to work this out in the past and I expect they will be able to continue to do so.
For completion, I have determined that unless the parties can otherwise agree, X should spend Easter with the parent with whom she is already spending time. Anything else is likely to result in additional travel or changeovers and would not be in X’s best interests.
I have otherwise dismissed the final parenting orders made 27 February 2019 and incorporated the orders which the parties did not seek to discharge (where still applicable) into my orders.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 10 November 2022
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