Snell and Dalziel

[2018] FCCA 878

FEDERAL CIRCUIT COURT OF AUSTRALIA

SNELL & DALZIEL [2018] FCCA 878

Catchwords:
FAMILY LAW – Parenting – relocation – shared care arrangement – mother’s right of freedom of movement – separation of siblings – mother permitted to relocate with the children – equal time order not practicable – no orders sought for eldest children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Applicant: MS SNELL

Respondent: MR DALZIEL

File Number: DNC 218 of 2017

Judgment of: Judge Young

Hearing dates: 20, 21 & 22 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Alice Springs

Delivered on: 22 February 2018

REPRESENTATION

Counsel for the Applicant: Mr David Hunter

Solicitors for the Applicant: David Hunter Law

The Respondent: In person

ORDERS

1. Both parties have equal shared parental responsibility for X born (omitted) 2002 (“X”), Y born (omitted) 2004 (“Y”) and Z born (omitted) 2009 (“Z”) (“collectively the children”).

2. The children shall live with the mother.

3. The mother be permitted to relocate the residence of the children to Adelaide.

4. There is no order as to time between W and X and the father.

5. In the event the father continues to live in Alice Springs, the children may spend time with the father as follows:

   (a)At times as agreed between the parties and failing agreement;

   (b)During the first half of each South Australian school holiday period in even numbered years; and

   (c)During the second half of each South Australian school holiday period in odd numbered years.

6. The father is to pay the costs of the children’s travel from Adelaide to Alice Springs and the mother is pay the costs of the children’s travel from Alice Springs to Adelaide.

7. The children are to have liberal communication with the father.

8. In the event the father relocates to Adelaide and lives within reasonable proximity to the children and the mother, the children are to spend time with the father as follows:

   (a)Z is to spend time with the father three nights per week and for one half of each school holiday period; and

   (b)Y is to spend time with the father according to his own wishes.

9. Each party is to authorise any of the children’s treating health providers to provide information to the other party as that health provider is legally able to provide.

10. Each party is to authorise any school attended by the children to provide the other party with such information in respect to the children (including reports, photos, newsletters) at that party’s cost.

11. Each party is to advise the other party immediately in the event the children or any of them suffers a serious illness or injury while in that party’s care.

12. Each party is to keep the other advised of their address and any change of address of their telephone numbers and email addresses.

13. Each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

DNC 218 of 2017

MS SNELL

Applicant

And

MR DALZIEL

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case about four children:  W, sometimes called W, who is 17 and 10 months old at the moment; X, who is 15; Y, who is 13; and Z, who is eight years old at the moment but almost nine.  The parties are agreed that there should be no order made about W, and, in substance, no order is sought about X either.  It’s accepted by the parties that W began his studies at the (omitted) University, and X will presumably have commenced school in Adelaide this year, so both the older children are presently living in Adelaide in the home of Mr H, the mother’s partner.  The case really concerns Y and Z. 

3. The mother wishes to relocate to Adelaide to live with her partner, Mr H, with whom she has been in a relationship, largely a long-distance one, for the past two and a half years or thereabouts.  The present arrangements for the family are as follows.  As I’ve mentioned, X and W are living in Adelaide as of the end of last year or the beginning of this year.  Z spends three nights a week with his father and half the holidays living here in Alice Springs. Until about October last year, Y was also spending the same amount of time with his father as Z, that is, three nights a week or thereabouts. However, as of the end of last year, that arrangement appears to have changed, and Y has been spending about one night a week with his father. 

4. In the family report in this case there was evidence of some strain in the relationship between the father and some of the children.  W, as mentioned, has relocated to Adelaide and has enrolled in university to study (omitted).  W said his father was not a good role model. He said that his father was oblivious to other people’s feelings and quite rigid in his views.  W does not spend time with his father.  X said that she did not spend much time with the father, and, as of the end of last year or the beginning of this year, she has relocated to Adelaide, as mentioned, and has enrolled in secondary school.  She told the family consultant that she was looking forward to the opportunities offered there, and, as I mentioned, is currently living in Mr H’s house awaiting the outcome, presumably, of these proceedings. 

5. Y told the family consultant that he got on well with his father, but it appears that he may have grown somewhat distant from his father.  Y mentioned disagreement with his father about his father’s accommodation and its suitability.  He said that he found his father frustrating and they often clashed.  He said to the family consultant that he was more in tune with his mother with whom he lives the majority of the time.  In his interview with the family consultant Z was anxious, according to the observations of the family consultant.  He said that he enjoyed spending time with his father but he said he did not like the accommodation the father had offered, including at times in the past apparently living in a tent and a caravan.  The family consultant was firmly of the view that Z wished to remain living with his siblings. 

6. The competing proposals of the parties are as follows. The mother wishes to relocate to Adelaide with the children.  She has formed a relationship with Mr H and proposes to live with him and the children.  Mr H himself has two children who are 8 and 10, and he has those in a shared care arrangement.  The mother says that, if she relocates, she intends to purchase a house in Adelaide.  I am satisfied that she has the capacity to do so and that she will, if she relocates, obtain suitable accommodation for herself, Mr H and all of the children. 

7. The mother is presently employed by the (employer omitted) in part as a (occupation omitted).  She said – and this evidence was not contradicted – that she would be able to take up that work or be based doing that work, continuing to do that work in Adelaide and that her employer had agreed that she should do that or could do that.  Mr H is employed in the (employer omitted) in a (omitted) role, and, while he has previously worked, he explained, in Western Australia, there is nothing to indicate that he could easily move to Alice Springs. 

8. Mr H gave evidence and I am satisfied that there is a serious and longstanding relationship between the mother and Mr H.  The children appear to know Mr H and get on well with him.  As an example of that, W and X are presently living in his home in Adelaide awaiting, in the case of X at least, probably the outcome of the proceedings.  The father’s proposal is that the present arrangements continue.  He says that the children have done well living in Alice Springs and they should continue to live here under the same arrangements, that is, with Z spending three nights a week with him and half the holidays and with Y spending time with him presumably under the present arrangements, something like one night a week, and, as I’ve mentioned, he seeks no orders about X and W. 

9. The father does not propose that Z and Y live with him but rather he proposes that they continue living with the mother, at least substantially, in a way that would facilitate the continuation of the current arrangements, that is, a shared care arrangement in substance, particularly in relation to Z.  As is clear, I think, from the leading authorities on relocation, this court would not usually make an order that the mother continue to reside in Alice Springs if she wished to move because that would be inconsistent with her right of freedom of movement, so it is difficult to see that the father’s proposal is one that could practicably be achieved and at the same time recognise the mother’s fundamental right of freedom of movement within Australia.  The other difficulty with the father’s proposal is that it would appear to require the separation of the siblings. 

10. It is clear enough from the family report that the siblings have a close bond with each other and X, Y and Z wish to live together.  Given that W and X are already living in Adelaide, that is really only practicable if all the children relocate with the mother to Adelaide.  These were the recommendations of the family report based on the consultant’s assessment that the children were most closely bonded to the mother, or closest to the mother perhaps, and that there was an important sibling relationship and that each of the siblings desired to live together.  I accept that the family consultant’s assessment of the situation was accurate.  The father, nevertheless, attacked those recommendations as biased and based on unreliable information from the children but I reject those claims.  I’m satisfied, as I’ve mentioned, that the family report and the assessments of the family consultant contained therein and his recommendations accurately reflect the wishes of the children. 

11. The father said that he will relocate to Adelaide – reluctantly, he said – and I accept that it would be reluctant – with his partner, Ms J.  I should mention that Ms J gave evidence by way of affidavit but she was not required for cross-examination.

12. The court is required to follow a legislative pathway in any parenting matter and a relocation case is no different. Section 60CC requires the court, in determining the best interests of the children, to consider the matters set out in sections 60CC(2) and subsection (3). In subsection (2), the primary considerations in relation to determining a child’s best interests are (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, with that latter factor having the most weight. In this case, the latter factor does not figure as an issue.

13. A question to be addressed is whether the children can maintain a meaningful relationship with the father should the mother relocate to Adelaide.  In a way, that is answered simply because the father has said that he will relocate to Adelaide, and, if he does that, there is probably no reason why something akin to the present arrangements should not continue.  If the father does not relocate to Adelaide and remains living in Alice Springs, then the relationship with the children will no doubt be affected, particularly with Z, the youngest child, but the fact that a relationship is affected does not mean that it is not a meaningful relationship.  A meaningful relationship is not necessarily the continuation of a relationship unchanged.  It means a relationship having substance and value to a child in the given circumstances and I’m satisfied that, if the mother did relocate to Adelaide, and the father, contrary to his assertion to the court, did not move to Adelaide, then a meaningful relationship would still be possible. 

14. In relation to the matters in subsection (3), the first matter is the views expressed by the children.  I’ve already mentioned those.  The older children have expressed views, particularly W and X, strongly in favour of moving to Adelaide with their mother.  As I’ve mentioned, W and X have already relocated.  Y expressed a view that the family consultant interpreted as a view that he wished to continue living with his mother.  Y was not particularly forthright about whether it was Adelaide or elsewhere but wished to continue living with his mother and his siblings, and, in the circumstances of this case, I have little doubt that Y wishes to continue living with his mother even if that’s in Adelaide and with his other siblings.  Z was more equivocal in what he said to the family consultant. As I interpret the family consultant’s assessment of Z, he did not express a clear view about that.  The family consultant was satisfied, however, that Z very much wanted to keep on living with his siblings and his sibling relationships were of the highest importance to him. 

15. The next matter that needs to be considered is the nature of the relationship of the children with each of the children’s parents. The family consultant was of the view – and I accept this view – that the children were emotionally closest to their mother.  The family consultant said that the children saw their mother as the “go-to” parent.  Where that phrase came from is a little bit unclear.  It first appears in the family consultant’s description of what W had to say to him, but, in any event, even if none of the children used precisely that phrase, I’m satisfied that it accurately reflects the situation. 

16. There is no doubt that the father has played an important role in the children’s lives over the years and has been, to use a word used in the family report, an invested parent, by which I take the family consultant to mean that the father is a committed and involved parent who is closely concerned with the welfare of his children.  Nevertheless, there are indications of a troubled relationship between the father and the three older children.  The view W expressed about the father was that he was oblivious to the feelings of others and was rigid in his views.  In my opinion, there was evidence in the way the father presented his case and conducted his case that supported that assessment.  The father would appear to have a somewhat difficult personality that has had an effect on his relationship with the older children in particular, probably for the reasons described by W. 

17. The next point to be considered is the extent to which each of the parents have taken or failed to take the opportunity to participate in decision making about major long-term issues, spending time with the children and communicating with the children.  There is no evidence that the father has not been involved in decision making about the children.  On the contrary, he appears to have been, as I’ve mentioned, a committed parent and invested, to use the family consultant’s words.  However, in relation to time and communication, there is clear evidence that the time the children, particularly the three older children, have been prepared to spend with the father and the degree to which they have been willing to communicate with him has become attenuated. 

18. In relation to the next consideration:

    (ca) the extent to which each of the children’s parents have fulfilled or failed to fulfil the parents’ obligations to maintain the child.

19. There was some slight evidence about that but I’m not satisfied that there is anything one way or the other under that heading that I need to consider.  Next:

    (d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent or any other child or other person. 

20. I might say that there is no other person who particularly figured in the evidence but the issue is related primarily, in this case, to the effect of the separation from parents, particularly between the children and their father, and, by implication, the effect of separation of any child from another child, that is, the siblings in this case.  If the mother moves to Adelaide there will be a change in circumstance.  W and X will not be affected by that because they’re already there.  Y will be affected to some extent, considering that he is spending regular time with his father, although it appears only about one night a week at the moment. 

21. It will affect Z to a very significant extent because he’s spending three nights out of seven with his father and I’m satisfied that Z is likely to be affected by seeing his father less, should his father remain in Alice Springs.  On the other hand, Z will continue to live with his siblings and I’m satisfied that that is a matter of great benefit to Z and very possibly of equal or greater importance than seeing his father on a continued basis of three nights out of seven. 

22. Factor (e) is:

    The practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

23. Under the mother’s proposal, if the father remains in Alice Springs, the children, Y and Z, will spend holiday time with the father.  The proposal is for half of the holidays.  If he moves to Adelaide, of course, there will be no significant difference.  The father suggests that there will be a considerable expense for him in paying for airfares, if he has to, between Alice Springs and Adelaide, and he says, I think by implication, that there is a risk that that would substantially affect the right of the children to maintain personal relationships and direct contact with him. 

24. I notice, however, that the father said that last year he paid $5,000 towards the children’s school fees.  As I understand the evidence, it’s proposed that each of the children attend a public school in Adelaide, and, if that is the case, there would appear to be a very significant reduction in expenses that the father is being called on to meet.  I’m not satisfied that the father would be unable to afford travel for the children between Adelaide and Alice Springs and I’m not satisfied that it would create any significant difficulty for him. 

25. Next:

    (f) the capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs. 

26. The children have had, I am satisfied, a close relationship with both parents at different times, though, as I’ve described, there appears to have been some attenuation in certainly the frequency that the older three children spend with the father over time though that hasn’t affected Z.  I accept the description of the family consultant that the father is an invested father, by which I take him to mean a committed parent.  There is, in my view, no question of that.  There is also evidence that the children are closest to their mother and that she adequately provides for their needs: emotional and intellectual. 

27. As I’ve mentioned, there are indications of strain in the relationship between the children – the three older children – and their father, and that would appear to relate to his ability to focus on their needs.  As an example, last year, the father told X that he would agree that she could move to Adelaide to commence school this year.  When the mother’s solicitor wrote to the father to confirm that he had agreed the father denied that he had agreed that X could move. Not surprisingly, that was passed on to the mother and then to X and it would be obvious, I think, that X was upset and confused by that information.  The father cross-examined the mother at some length to suggest that X’s upset and confusion was her fault. 

1. It is obvious to me that X’s upset and confusion was directly the result of the father’s dissembling with the mother’s solicitor which he said frankly was because of his feelings of personal animosity towards the father’s solicitor, and, in those circumstances, his cross-examination of the mother to suggest that it was her fault suggested to me a serious inability, as W himself said to the family consultant at one point, to see the other person’s point of view. 

2. Next:

   (g) the maturity, sex, lifestyle, background of the children and of the parents and any other characteristic of the children the court thinks relevant. 

3. I’ve made remarks already that have covered this criteria. In relation to (h) – the children are not Aboriginal children.

4. Next:

   (i) the attitude to the children and responsibility of parenthood. 

5. I think I’ve covered that area in previous remarks.  There is (j).  I’m not aware of any current allegations of family violence though there were some historical allegations. I make no finding about any of those matters.  As I understand it, there are no existing family violence orders.  Finally, I have to consider whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings in relation to the children and any other fact or circumstance that the court considers relevant.  There are no other facts or circumstances I consider relevant but I consider it is necessary to make orders in the event of two scenarios, that is, the father remaining in Alice Springs and the father moving to Adelaide. 

6. I propose to make an order permitting the mother to relocate with the children to Adelaide largely in conformity with the orders that she seeks. The mother agrees that there should be an order for shared parental responsibility with the father. That means that, under section 65DAA, I must consider whether or not it is practicable for the children to spend equal time or substantial and significant time with the father. As I’ve mentioned, it is agreed that there are to be no orders concerning W and X. If the mother is living in Adelaide and the father remains living in Alice Springs then I am satisfied that equal time is not practicable.

7. If the father remains living in Alice Springs, I propose to make orders that the children, Y and Z, spend half of the Christmas holidays with him, and I will make orders also for the sharing of the expense of any travel on an equal basis.  If the father moves to Adelaide then the mother proposes that Z should spend time with the father on three nights a week, that is, a continuation of the present arrangements, if he’s living within reasonable proximity of the mother’s home.  Similarly, that Y spend time with the father according to Y’s wishes.  Again, that is a reflection of the present arrangement and I consider that would be appropriate. 

8. I am satisfied that equal time, if the father moves to Adelaide, is not practicable for this reason:  while the father has said that he will move to Adelaide, he has not given any particular evidence about what arrangements he will make.  He has not made any specific proposal.  He has not given any information about where he would reside, and I’m not satisfied that, in the absence of that information that I can find that it is practicable that there be equal time concerning Z at least.  I think, in relation to Y, an equal time order is not likely to be complied with by Y. In relation to Z, I would not be satisfied in any event that an equal-time order is appropriate, given the evidence of the family report, that I accept that Z is closest to his mother and wishes to maintain a close relationship with his siblings. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  11 April 2018