Smith and Smith
[2008] FMCAfam 639
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMITH & SMITH | [2008] FMCAfam 639 |
| FAMILY LAW – Children – relocation – mother wishes to move with children to Hobart – whether father agreed to that move – relocation principles – best interests of children. |
| Family Law Act1975 (Cth) ss.60B, 60CA, 60CC and 65DAA |
| Morgan & Miles (2007) FLC 93-343 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A; Relocation Approach (2000) FLC 92-035 U v U (2002) 211 CLR 238, (2002) FLC 93-112 P & P [2006] FMCAfam 518 Bolitho and Cohen (2005) FLC 93-224 Godfrey & Sanders [2007] FamCA 102 M & S (2007) FLC 93-313 Bright and Bright v Bright and Mackley (1995) FLC 92-570 |
| Applicant: | MR SMITH |
| Respondent: | MS SMITH |
| File Number: | LNC 725 of 2007 |
| Judgment of: | Roberts FM |
| Hearing dates: | 7 & 8 February 2008 |
| Date of Last Submission: | 8 February 2008 |
| Delivered at: | Devonport |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | McVeity & Associates |
| Counsel for the Respondent: | Mr P Fitzgerald with Ms A. Boote |
| Solicitors for the Respondent: | Legal Aid Commission of Tasmania |
ORDERS
That MR SMITH (“the father”) and MS SMITH (“the mother”) have equal shared parental responsibility for [A] born in 2003 and [B] born in 2006 (“the children”)
That the children live with the mother.
That the mother be permitted to relocate with the children to Hobart after the end of the 2008 school year.
That until the mother and the children relocate to Hobart, the children are to spend time with the father for the first three nights of each of his four day block of rostered days off work.
That the father have reasonable telephone communication with the children and for such purpose the mother is to keep the father informed of the telephone number on which they can be contacted.
That the parties have liberty to apply in the event that they are unable to agree upon the time that the children are to spend with the father after they relocate to Hobart.
IT IS NOTED that publication of this judgment under the pseudonym Smith & Smith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 725 of 2007
| MR SMITH |
Applicant
And
| MS SMITH |
Respondent
REASONS FOR JUDGMENT
Essentially, this case is about where two children should live with their mother - on the North West Coast of Tasmania or in Hobart.
Background
The applicant, MR SMITH (“the father”) and the respondent MS SMITH (“the mother”) commenced cohabitation in 1999. They married in 2002 and have two children, a daughter [A] born in 2003 and a son [B] born in 2006 (“the children”).
The parties separated at the end of March 2007.
The father works as a diesel mechanic for a national company and the mother works part time for a government agency.
Since the parties separated, the father has changed his work hours to a “four days on/four days off” roster. Prior to the parties’ separation he was working Monday to Friday.
The mother informed the father that she wished to move to Hobart with the children and she believed that agreement had been reached that she should be able to move. The father’s view is that no concluded agreement was reached. I will refer to that in more detail below.
The Applications
The parties agree that the children should live with the mother and that they should share parental responsibility equally.
The father wants the children to spend time with him:
a)For the first three nights of each of his four day block rostered off work.
b)For one half of each school holiday period.
c)Over Christmas on a rotational basis.
d)On other special occasions.
e)For half of the Easter period.
The mother proposes that she live in Hobart with the children and that the children spend time with the father as follows:
a)For half of each school holiday period on a weekly basis.
b)At Christmas on an annual rotational basis.
c)For two nights out of the father’s four day off period if he exercises that time in Hobart (i.e. two nights in every eight).
d)For three nights in each second rostered off period of four days if he exercises that time on the North West Coast of Tasmania (i.e. three nights in every sixteen).
The mother also proposes that if that time is to be spent on the North West Coast, the parties or their nominated agents should meet at [X] in Tasmania for the handover of the children.
The Evidence
The father relied only upon one affidavit sworn by himself.
The mother relied upon two affidavits sworn by herself, one sworn by her own mother and affidavits sworn by two managers at her place of employment.
The father, the mother, the maternal grandmother and one of the two managers were all cross-examined.
On the first day of the hearing, I ruled that much of the affidavit material of the mother, the father and the maternal grandmother should not be admitted into evidence but it is not necessary to repeat my reasons for that ruling. Suffice it to say that, because the mother had stated in her affidavit that the father is a loving and capable parent, I could see no good reason why the parties should waste the court’s time dealing with each of their perceptions of the faults of the other parent.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
The law in relation to relocation of children is very fully set out by Boland J in Morgan & Miles[6]. I do not propose to restate all of what her Honour said. However, I think that it is worth restating what she said at paragraphs 80 and 81:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
[6] (2007) FLC 93-343
remain valid.
What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Those “earlier core principles” to which her Honour referred come from decisions such as AMS v AIF; AIF v AMS[7], A v A; Relocation Approach[8] and U v U[9].
[7] (1999) FLC 92-852
[8] (2000) FLC 92-035
[9] (2002) 211 CLR 238, (2002) FLC 93-112
In a recent paper, Professor Patrick Parkinson said[10]:
The best interests of the child remain, of course, paramount, but they are not at large. The decision about the future of a child in a parenting matter is not a personal decision of the judge but a judicial decision. There is not a hierarchy of considerations, paramount, primary and additional. Rather, the assessment of the best interests of the child in a given case relies upon a reasoned assessment of the primary and additional considerations in s.60CC, and the other considerations such as in s.65DAA, taking into account the objects and principles of Part VII of the Act.
[10] Prof. P Parkinson, “Relocation in the Era of Shared Parental Responsibility”, May 2008, Sound Education in Family Law
In my view, that is a succinct statement of the law in relation to relocation applications.
Did the father agree to a move to Hobart?
One of the principles underlying the objects of Part VII of the act is that “parents should agree about the future parenting of their children” and it is clearly the mother’s case that the father has reneged upon an agreement that she be able to move to Hobart with the children.
At paragraph 26 of his affidavit, the father refers to the entry in his diary for 25 April 2007 when he wrote:
She asked how I felt about her moving back to Hobart with the kids. Thought about it and put offer to organise work transfer and child care and we will negotiate once all in place.
In paragraph 35 of his affidavit, he says that his entry in his diary for 22 June 2007 states:
I told her I would let her go to Hobart but wouldn't put into writing…
In paragraph 36 of his affidavit the father says;
I was still hoping that our relationship could recommence and when I said “I would let her go to Hobart but I wouldn’t put it in writing” I wasn’t trying to be “smart”. [Ms Smith] had previously taken what I had said out of context and I was concerned that if I wrote down, for example, the phrase “[Ms Smith] has my permission to move to Hobart” she would take it to her lawyer.
Frankly, I am at a loss to understand how “I will let you go to Hobart” can be taken out of context.
Paragraph 38 of the father’s affidavit shows to me that he must have reinforced the impression in the mother’s mind that she had his approval to move to Hobart because he wrote in his diary:
Went back later to talk, told her of my predicament and asked if I could to put the caravan in backyard until she went to Hobart.
A letter from the father’s solicitors to the mother’s solicitors of
16 August 2007shows very clearly that the father had agreed that the mother should be able to move to Hobart with the children “on or around 12 January 2008”. Further, his agreement to her move is repeated at the end of that letter by the statement of his solicitor:
I will repeat my client's position that, once your client has moved to Hobart, he wishes to resume living in the house …..
It is of no great surprise to me therefore that the mother believes that the father has reneged upon his agreement to her moving to Hobart with the children.
However, it is clear that no such agreement exists now because the father states quite plainly at paragraph 59 of his affidavit: “I oppose [Ms Smith]’s relocation.” As a consequence, I must now decide whether a move to Hobart is in the children’s best interests.
Why does the mother want to move to Hobart?
The mother’s reasons for wanting to move to Hobart are relatively simple:
a)The parties move to the North West Coast was always intended to be temporary;
b)She has no family support on the North West Coast; and
c)All her family live in Hobart, and she would have their support and that of her friends.
Why does the father oppose her move to Hobart?
The father says that relocation to Hobart is not in the children’s interests because:
a)They will be “subjected to regular long distance travel when they don’t need to be subjected to that”;
b)It will be more difficult “to make arrangements about the time they spend in each home”; and
c)He will have less opportunity to “do normal every day parent things” with the children.
Discussion
It is not surprising that relocation cases often cause significant anguish for the litigating parents and are difficult for courts to decide. The difficulties were succinctly put by his Honour Brown FM in P & P[11] as follows:
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[11] [2006] FMCAfam 518 at paragraph 25
His Honour had also earlier in his Reasons said at paragraph 21:
There is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a rubik’s cube to reach a perfect result.
In this matter, neither proposal put forward by the parents suggests that the children should spend equal time with their father and mother. Both proposals provide for the children to spend more time with their mother than with their father. Clearly, the father’s proposal provides for them to spend more time with him than the mother’s proposal, but it is quite clear that the father’s proposal cannot work if the mother lives in Hobart and he continues to live and work on the North West Coast. Consequently, if I make the orders that he is seeking, it must prevent the mother from moving to Hobart.
However, it is clear that the court is not bound by either parent’s proposal. See Bolitho and Cohen[12].
[12] (2005) FLC 93-224
The children’s best interests
It is also clear that in the tension between parents’ rights to live wherever they want to live and the children’s best interests, the Court’s paramount consideration must always be the best interests of the children. I must therefore examine the parties’ proposals and the evidence in light of Section 60CC of the Act.
Primary considerations:
The benefit of having meaningful relationships with both parents
I agree with Brown FM, when he said in P & P:
As the child’s best interests remain the paramount consideration in considering any relocation and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests.[13]
[13] [2006] FMCAfam 518 at paragraph 245
I am also of the view that “meaningful relationship” is not to be confused with a perfect, or near perfect relationship. In life generally, perfect relationships are probably impossible to achieve, so when a court is asked to adjudicate in a dispute between separated parents who cannot “agree about the future parenting of their children”[14], it will almost certainly be impossible to make arrangements that will provide for a perfect relationships with both parents.
[14] Section 60B(2)(d)
In the relocation case of Godfrey & Sanders[15], Kay J (sitting as the Full Court) said:
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.
[15] [2007] FamCA 102
In a similar vein, in M & S[16], Dessau J said at paragraph
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[16] (2007) FLC 93-313
However, the Court must ensure “that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.[17]
[17] See section 60B(1)(a)
In this particular case, it is important to note that the mother proposes to live approximately three hours drive from where the parties are currently living. It is her proposal that, if the father wishes to remain living on the North West Coast of Tasmania and spend time with children there, then that should be once every 16 days and the parties should meet at [X], being an approximately mid-way stop-off point.
In my view, both parties’ proposals will provide the children with meaningful relationships with both parents. However, if the children move to Hobart and the father chooses not to move there himself, their relationships with him may not be the “optimal” relationship that he desires.
It was clear from the father’s evidence that he has actively considered moving to Hobart. Indeed, he gave evidence that he been involved in informal discussions with his current employer about transferring to Hobart. I gained the clear impression that he would have little difficulty obtaining such a transfer. However, his main objection to moving to Hobart was that he would have to work Monday to Friday (and not “four days on/four days off”) and would become “a weekend father”.
I note that the father was content to work Monday to Friday before the parties separated.
The need to protect the children from physical or psychological harm from abuse, neglect or family violence
There is no suggestion that these children need any of the protection of the type envisaged in this Primary Consideration.
Additional considerations:
The children’s views
It is clear that at the ages of five and two, these children are unlikely to have any views that would affect the outcome of this matter.
The nature of the children’s relationships with the parents and other persons
It is clear that these children already have meaningful relationships with both parents. In my view, a move by the mother to Hobart will not jeopardise the children’s relationship with their father (even if there is no corresponding move to Hobart on the father’s part).
The children also have a good relationship with their maternal grandparents in Hobart.
It is unlikely that the children have yet developed a similar relationship with their paternal grandparents. That is because the father’s own relationship with his parents was strained while the parties were living together, notwithstanding that they lived quite close. I accept the father’s evidence that he has now improved his relationship with his parents. That can only be to the children’s advantage. In my view, children are fortunate if they can have close and loving relationships with grandparents and extended family on both sides. As the late Treyvaud J said in Bright and Bright v Bright and Mackley[18]:
… it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
The parents’ willingness and ability to facilitate, and encourage, a close and continuing relationship with the other parent
[18] (1995) FLC 92-570 at page 81,658
The mother says that if she and the children live in Hobart she will facilitate the children spending as much time as possible with the father. She says that although cost of travel will be a factor (because she will have to travel to [X]), she will budget for that travel so that it does not interfere with the children enjoying their time with their father.
She also says that she will investigate setting up a special package with a telephone company to enable regular telephone contact between the children and their father.
The mother says quite clearly in paragraph 29 of her trial affidavit that the father is a loving and capable parent when they are in his care.
I have no cause to doubt the mother's sincerity in relation to these matters.
To his credit, the father clearly acknowledges that children should live predominantly with their mother. Consequently, I have no reason to doubt the father's willingness to encourage the children's relationship with their mother.
The likely effect of any changes in the children’s circumstances
If the children move to Hobart with their mother, the final outcome of this matter will depend very much upon whether or not the father chooses to follow them. I have no doubt that the father can obtain work in Hobart, so in that regard, it is perfectly clear to me that, if the mother and the children move to Hobart, the father has the keys in his own pocket to ensuring a more successful outcome .
There is also no doubt in my mind that the mother's parenting of these children will be much improved in Hobart. I accept her evidence that she will have support with babysitting, school pick-ups, and additional social support from friends.
Initially, she intends to live with her parents, who will accommodate not only the mother and the children, but also the children's pets. The mother was not challenged in relation to her evidence that the older child would be very distressed if she was to lose her chickens.
There is also very clear evidence that the mother is well supported by her own family. For example, on one occasion her mother took time off to assist her with the care of the children for a period of three weeks when she and the children were ill.
It is also clear that the mother has no family support where she is currently living. Her relationship with the father's family is not good. While I have noted above an improvement in the father's relationship with his own family since separation, it is quite clear from the father’s oral evidence that he blames the mother for his previously poor relationship with them. It is most unlikely that the mother's relationship with the father's family will improve, simply because he is unlikely to be promoting her image to them.
In my view, it is logical to expect that the mother will feel “trapped” if she is not allowed to move, and a likely outcome is that she will feel significant bitterness towards the father as a result. That can only result in some deterioration in the parties’ relationship, which would be unlikely to promote their children’s best interests.
Clearly, this “additional consideration” is very much linked, and overlaps with the one referred to immediately below.
The practical difficulty and expense of a children spending time with and communicating with a parent
In AMS v AIF; AIF v AMS Kirby J said the following[19]:
…in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community
[19] (1999) FLC 92-852 at paragraph 147
In my opinion, it would be very hard to argue with the simple common sense in that statement.
Most of the relocation cases considered by this Court (and by the Family Court of Australia) do not involve an international relocation. However, they often involve relocations from one State to another, and often involve very significant distances. That is not the case here.
In this case, the mother asks only to be allowed to relocate from one end of Tasmanian to the other. As I have noted above, that is a separation of approximately three hours’ driving time. In the greater scheme of things, that might not appear to be a very significant relocation.
If the father chooses not to move to Hobart, the mother's proposal will involve the parties sharing that three hour trip. In my view, that would not interfere with the father's good relationship with his children. Indeed, travel together can be an enjoyable part of a parent/child relationship.
However, as I have said above, the father has the keys in his own pocket to resolve that three hour “difficulty”, because he can quite easily move to Hobart himself.
The parents’ capacities provide for the needs of the children
There is nothing in the evidence that suggests that these parents are unable to provide for their children's needs. The father clearly accepts that the mother is very competent in her parenting of the children. Similarly, it is clear that the mother accepts that he is a capable parent.
Although the older child has some health difficulties that require careful management, it is to the credit of both parents that they accept that the other parent is quite capable in that regard.
The parents’ attitudes to the children and to the responsibilities of parenthood
It is perfectly clear that each parent regards the other as a competent and capable parent. There is nothing to suggest that the court should have any adverse concerns about the attitude of either parent to the children or to the responsibilities of parenthood.
Family violence
This is not an issue of concern to the court.
Conclusions
In my view, the question the court must answer is not whether the mother should be permitted to relocate to Hobart with the children, but when should that happen.
The older child is likely to be attending school on a full-time basis next year. I am therefore of the view that the children should be permitted to move to Hobart with adequate time for them to be settled into accommodation and routines before the start of the next school year.
I am therefore of the opinion that it is appropriate for them to move shortly after the end of this school year.
In Tasmania this school year ends on the 18 December 2008. Consequently, any move after that date is approximately six months away.
While the mother may feel that she is “trapped” for yet another six months, such a delay will help to further cement the relationships between the father and the children, the younger of whom is only two years old.
Such a delay will also give the mother time to organise the myriad of things that normally need to be organised when a family moves from one city to another. (However in this regard, I note that the mother has already made some sensible enquiries about appropriate schooling in Hobart.)
In addition, such a delay will allow the father to make a decision about whether he wants to move to Hobart as well, and if so, organise his own employment and accommodation there. While I believe that such a move on his part would be in the interests of his relationships with the children, it is clear that I cannot order him to make that move, because that would interfere with his right to choose where he wants to live.
The difficulty that I have in deciding what orders are appropriate after the mother moves to Hobart is that I do not know whether the father will also move, and if he will, what his work hours will be. Consequently, I will not make orders at this stage about what time he will spend with the children after their move to Hobart. Instead, I will provide the parties with liberty to apply in relation to that if they are unable to reach agreement.
However, I will say that if the father elects to move to Hobart, I would expect him to spend time with the children that is “substantial and significant” as defined in section 65DAA(3) of the Act. On the other hand, if he does not move to Hobart and continues working on a “four days on/four days off” roster, his opportunities to spend “substantial and significant” time with the children will be much reduced. That is simply because his time off under such an eight day cycle will only rarely coincide with the children’s weekly availability after the older child attends full-time school.
I note that both parties are expecting the children to spend half the school holidays with the father, irrespective of where he chooses to live.
In my view, it is appropriate for the father to spend time with the children as sought by him up until they move to Hobart, so I will also provide for that in the orders that I make.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Roberts FM
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