SUTHERLAND & SUTHERLAND

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTHERLAND & SUTHERLAND

[2015] FCCA 984

Catchwords:
FAMILY LAW – Property division – children – relocation – discussion of issues of freedom of movement.

Legislation:

Australian Constitution, ss.92, 109

Family Law Act 1975 (Cth), ss.41, 60B, 60CA, 60CC, 65DAA, 68F, 75(2), 79(2), 90MT(1)(b)

Northern Territory (Self-Government) Act 1978 (Cth), s.49

A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF (1999) 199 CLR 60; (1999) FLC 92-852
B & B: Family Law Reform Act 1975 (1997) FLC 92-788
D & SV (2003) 30 Fam LR 91; (2003) FLC 93-137
Sigley & Evor (2011) 44 FamLR 439

Applicant:

MR SUTHERLAND

Respondent:

MS SUTHERLAND

File Number:

CAC 758 of 2014

Judgment of:

Judge Brewster

Hearing dates:

9 & 10 April 2015

Date of Last Submission:

10 April 2015

Delivered at:

Canberra

Delivered on:

8 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gill

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

Property Orders

That the balance of the proceeds of sale of the property known as Property L be divided between the parties as follows:
(a)to the husband 25/100 (A + B + C) – $49,250
where
A = the amount of money held in trust
B = the amount of $35,000 paid to him
C = is the value of the chattels he will receive ($14,250)
The $49,250 is the amount received by him plus the value of his share of the chattels.
(b)the balance to the wife.
That the wife retain the parties’ Kia (omitted) motor vehicle and that the husband sign all documents that may be necessary to transfer the registration into the name of the wife.
That the husband be entitled to the parties’ (omitted) boat and the two trailers and the wife sign all documents that may be necessary to transfer the registration into the name of the husband.
That otherwise against the other each party be entitled to retain any chattels currently in his or her possession and the choses in action in his or her name.
That in accordance with section 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Sutherland from his interest in the (omitted) superannuation fund (“the fund”) Ms Sutherland is entitled to be paid by the Trustee of the fund 60% of the splittable payment and there should be a corresponding reduction in the amount that Mr Sutherland would be entitled to receive but for these orders.
That the operative time for order 5 is four business days after the service of the final orders on the Trustee.
That the solicitors for the wife serve a copy of these orders on the Trustee of the fund by post. The Trustee is requested to advise any objections to these orders within 28 days of receiving them.

Children’s Orders

That in these orders the term “contact” means “spending time with”.
That the parties have equal shared parental responsibility for the children X, born (omitted) 2003, Y, born (omitted) 2005, and Z, born (omitted) 2010 (“the children”).
That the children live with the mother.
That until the mother relocates to (omitted) the father have contact as follows:
(a)During school term each alternate weekend from the conclusion of school Friday until the commencement of school Monday ;
(b)From the conclusion of school until 6.30pm on Thursday on the week following a contact weekend.
That upon the mother relocating to (omitted) contact will commence at 5.00pm on Friday and will conclude at 5.00pm on Sunday and the Thursday contact will cease.
That in addition the father is to have contact with the children for one half of school holidays being the first half of holidays falling or commencing in odd numbered years and the second half of school holidays falling or commencing in even numbered years.
That the father may communicate with the children by telephone or Skype each Monday and Thursday in the week after a “non-contact weekend” (or when they are with the mother during school holidays) and on the Wednesday in the week prior to a contact weekend.
That when the children are with the father on holiday contact the mother may telephone the children each Wednesday between 6.00pm and 6.30pm.
That the party who does not have the children on Christmas Day may telephone them on that day no later than 6.00pm and the party who does not have the children on any of their birthdays may telephone them on those days up to 6.00pm
That if the Monday of a contact weekend is a public holiday then contact is extended to include the Monday.
That after the mother moves to (omitted) if the weekend of the Queen’s Birthday is not a contact weekend the father is to have contact on that weekend in lieu of contact on the next weekend.
That if Mother’s Day occurs on a contact weekend the father will not have contact on that weekend but in lieu will have contact on the following weekend.
That if Father’s Day occurs on a non-contact weekend the father will have contact on that weekend in lieu of the previous weekend.
That when school holiday contact is in the first part of the holidays it will commence at 10.00am the day after school breaks up and conclude at 5.00pm on the last day. When it is in the second part of the school holidays it shall end on the day before the children are to return to school except in the case of the Christmas school holidays when it will end two clear days before the children are to return to school. This is not intended to reduce the father’s time with the children.
That handovers shall be occasioned by the father collecting the children from the mother’s home at the commencement of contact and the mother collecting them from the father’s home at the conclusion of contact.
That each party is to keep the other advised of their address and telephone number.
That the mother is to authorise any school the children attend to provide the father copies of school reports, school photographs (at his cost) and other material commonly sent to parents.
That the mother is to advise the father of the details of any health professionals involved with the children and authorise such professionals to provide any information he may request. This order does not purport to require those professionals to provide such information.
That each party is to promptly advise the other of any significant medical issues involving the children whilst they are in his or her care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 758 of 2014

MR SUTHERLAND

Applicant

And

MS SUTHERLAND

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute between the parties as to property division and the arrangements that should be made with respect to their three children. Those children are X who was born on (omitted) 2003 and is therefore aged 11, Y who was born on (omitted) 2005 and is therefore aged 10, and Z who was born on (omitted) 2010 and is therefore aged 4.

Background

The husband is aged 41 and the wife 40. They commenced to live together in 1997 and were married on (omitted) 2000. X, Y and Z are the only surviving children of the marriage. There was an older child who died in infancy.
The parties separated on 23 February 2014 when the husband left the matrimonial home. The children remained in the care of the mother. They negotiated arrangements in respect of the father’s spending time with the children to the following effect:
a)X and Y would spend time with him from 5.00pm on Friday until 5.00pm on Sunday each alternate weekend;
b)On the same weekend Z would spend time with him from 5.00pm until 6.30pm on Friday evening and from 9.00am until 5.00pm on either Saturday or Sunday or, if he was able to arrange transport, on both the Saturday and the Sunday. The parties agreed that when Z turned four she was to spend time overnight with the father one night a fortnight. This was increased to two nights a fortnight from the Christmas 2014 school holidays.
The father also spent some holiday time with the children and during the last Christmas school holidays X and Y spent two blocks of one week periods with him with Z spending three nights with him during each of those block periods.
At the date that they separated the parties were the joint owners of a property at Property L. This was sold in October 2014. From the sale proceeds some bills were paid and Ms C’s account for an expert report was paid. In all about $11,140 was applied for these purposes. An amount of just under $387,000 remained. From this each party was paid $35,000. This left an amount of about $317,000. As this is in an account which I assume attracts interest this would have grown somewhat since.
Each of the parties has re-partnered but neither lives with his or her partner. Neither partner gave evidence in this case and this aspect plays no part in my decision.

The Parties’ Applications

In relation to property the husband proposes that the remaining trust monies be divided between the parties in the proportion 65% to the wife and 35% to him. There are orders sought in relation to chattels which are not in contention. He also concedes that there should be a superannuation split with respect to his superannuation by which the wife would receive an amount equal to 50% of his entitlements.
In relation to children’s matters the husband originally sought that there be an order for a week about arrangement but ultimately sought orders that the children spend time with him from Friday afternoon to before school on Monday each alternate weekend and from after school Thursday to before school Friday in the other week. He proposed that from 1 June 2015 the weekend time be extended from Thursday to Monday. He proposed he spend time with the children for half of each school holiday period and he made provision for special days.
The wife sought orders in relation to property which would have her receive 85% of the monies in trust. She sought 60% of the husband’s superannuation. She also sought orders in relation to chattels which I need not set out.
In her case outline the wife sought an order that the husband return to her the ashes of their deceased child and provide a copy of all the photographs of that child. It is alleged that the husband removed the ashes from the (omitted) property. I am sympathetic to his providing copies of all photographs but do not as presently advised see why one party rather than the other should have possession of the ashes. This matter was not addressed at all in in either evidence or submissions and perhaps it is now a non-issue. I have not made any orders as to this.
In relation to children the wife seeks orders that would permit her to relocate the residence of the children from (omitted), where both parties live, to (omitted). She does not propose to move immediately but will wait until the end of the 2015 school year. She proposes that the husband spend time with the children each alternate weekend from 5.00pm Friday until 5.00pm Sunday. She seeks orders in similar terms to those sought by the husband in relation to school holidays.

Discussion

I shall first address the issue of property division.
In dealing with this aspect of the case I shall adopt the conventional four stage process. The first stage involves making findings as to the pool of property. The second stage involves an assessment of contributions made by the parties whether financial or otherwise. The third stage involves a consideration of such factors set out in section 75(2) of the Family Law Act that may be relevant. At either stage an adjustment may be made in the property interest of the parties. The final stage involves taking an overview of the result derived from any alterations made under the second and third stages to determine if, overall, that result is just and equitable. As a preliminary matter however the Court is enjoined not to make orders altering the property interests of the parties unless it is just and equitable to do so. See section 79(2). In this case both parties seek orders which would alter the property interests of the parties and, having regard to the contributions made by the wife which I shall presently discuss, I am satisfied that it is just and equitable to alter their property interests.

The Pool

I shall approach the division of the trust monies on the basis that about $387,000 is to be divided. I shall adopt a formula for the division which will take account of both the $35,000 that was paid to each party and the interest that would have accrued on these monies.
The wife has shares which at the date at the hearing were valued at $6,020. I propose to exclude these from the pool as they were effectively brought into the relationship by the wife and taken from it by her. They relate to benefits received on the de-mutualisation of the (omitted).
The parties have a Kia (omitted) in possession of the wife valued at $20,000. It is agreed that the wife should retain this vehicle.
There is a boat and box trailer plus another trailer. It is agreed that these should go to the husband and their combined value is $14,250.
The husband has accumulated superannuation with (omitted) valued at just under $84,000.
The wife would have me deduct a loan from her parents of $26,480. This relates to monies advanced to her post separation. I do not propose to deduct it from the pool. Indeed I do not know if her parents will ever require it to be repaid.

Contributions

Apart from one matter which I will presently address I see no reason to regard the contributions of one party made during the marriage as being of more or less significance than the contributions of the other. Indeed no submission was made to the contrary. It was a traditional marriage where the husband was the breadwinner and the wife the homemaker and parent.
An important matter however is that in December 1999 the wife received an amount of around $189,000 from a damages claim. The net amount that she received is not known as solicitors’ costs would have been deducted from this but with the proceeds they bought their first home in (omitted). This cost $180,000. They did not require a mortgage to complete the purchase. They later borrowed $60,000 by way of mortgage to buy a car and boat and to make improvements to the home.
This property was sold in 2006 for $390,000. With the proceeds the parties purchased the (omitted) property.
Each of the parties received benefits from their respective families. The husband’s grandmother gave them $3,000. The wife’s parents paid about $25,000 in total for an engagement party, the parties’ wedding and funeral costs for their first child. As these were rather ephemeral payments they do not loom large in the exercise in which I am engaged. The wife’s parents also purchased a number of household items which they claim to have cost $24,550. I accept this evidence.
At times the parties lived with either the wife’s parents or the husband’s sister and her husband. There is a dispute as to whether they spent more time with the wife’s parents or with the husband’s sister and her husband. The wife maintains it was about equal. I am unable to make any finding and so I adopt the position that contributions in this respect balance out.
As something of a “quid pro quo”, the husband built a deck for the wife’s parents’ home. The materials were paid for by her parents but the husband did all the work involved.
Overall I am satisfied that the benefits provided by the wife’s parents are of more significance than any offsetting factors that I have mentioned.
On separation the parties had $4,854 in the bank account. The husband took most of this. However I appreciate that he would have needed money to re-establish himself.
Post separation the wife has had the primary care of the children. The husband has paid child support. Initially this was $1,129 a month reducing to $1,020 a month as his time with the children increased. It is my practice to disregard post separation contributions as a parent where the “non residence” parent has wholly or largely met the costs of maintaining the children. In this case however I am satisfied that the husband’s contributions would not have covered, or substantially covered, the costs of maintaining the children and I take the wife’s post separation contributions as a parent into account.

Section 75(2) Factors

The husband is employed as an (occupation omitted). He has worked in this field for many years. In his financial statement he gives his income as $1,659 a week from this employment.
The wife does not work and has not worked for many years. She is qualified as a (occupation omitted) but has never worked in this field. She has no other qualifications. She hopes to obtain employment and I am confident that she will do so. I think it unlikely that she will match the husband’s income, at least in the short to medium term.

Conclusion

In this matter I shall deal first with the non-superannuation pool and then with superannuation.
It is important when making a percentage division in relation to property that the dollar value of that division is appreciated. In this case the pool is in the order of $420,000. So for example a 10% adjustment would amount to about $42,000 or a differential between the parties’ entitlements of about $84,000.
In relation to the contribution based division all factors favour the wife. This includes the assistance by her parents and the post separation contributions. Of overwhelming significance however is the contribution she made via her damages monies. It was this contribution that enabled the parties to buy a home and this proved the springboard to the acquisition of the (omitted) property, the proceeds of sale of which comprise almost all the pool.
I appreciate however that these monies were applied many years ago and their significance had been eroded by the passage of time and the contributions made by the husband in the intervening years.
I make a contribution based division of 65% to the wife and 35% to the husband.
In relation to section 75(2) factors the most significant matters are the disparity in the parties’ earning capacities and the wife’s continuing responsibility in relation to the children. I bear in mind however that as a result of the contribution based division she has greater assets than the husband. I make a 10% adjustment in favour of the wife.
In relation to superannuation the whole of the husband’s superannuation was acquired during the relationship and so the wife has indirectly contributed to its acquisition. It is also relevant when I consider section 75(2) factors that the differential in the parties’ earning capacities will result in a differential in their capacity to accumulate superannuation in the future. On the other hand I must bear in mind that the wife is only 40 years of age and it will probably be about 25 years or so before she can access her superannuation. What the position will be after this period of time is unknown. I appreciate also that the superannuation is of modest value. In the circumstances I propose a division of superannuation which will give the wife 60% of the husband’s present superannuation.
I have therefore made orders which will divide the non-superannuation pool 75% in favour of the wife and 25% in favour of the husband. I appreciate that this is a very substantial disparity. Some 50 per cent. Nevertheless in view of all the matters that are involved I am satisfied that this adjustment is a just and equitable result. In relation to superannuation whilst in the medium term at least it is likely that the husband will accumulate more superannuation than will the wife the time lapse between the present and the time that the wife can access superannuation is so large that in my view a substantial differential in the split is not appropriate. I am satisfied that the orders that I have made are just and equitable.

I have expressed the non-superannuation division in mathematical terms. As can be seen I have provided that the husband receive an amount as follows:
25/100 (A + B + C) – $49,250
where
A = the amount of money held in trust
B = the amount of $35,000 paid to him
C = the value of the chattels he will receive
$49,250 is the monies he has received ($35,000) plus the value of his chattels ($14,250).
I turn now to children’s matters.
Section 60CA of the Act requires that in resolving this matter I am to regard the children’s best interests as the paramount consideration. It is to be noted that whilst those best interests are the paramount consideration they are not the only consideration. In this case issues which may conveniently be described as freedom of movement arise. I shall discuss this in more detail later in this judgment.
Section 60CC of the Act sets out a number of matters that I am to take into account when assessing what is in the children’s best interests. I shall discuss that section shortly. A backdrop to this exercise is found in section 60B of the Act. This section sets out the objects of the Act insofar as it addresses children’s matters and the principles underlying those objects. Of significance in this case is 60B(1)(a) which recites that one of the objects of the Act is to ensure the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
I turn to section 60CC.
That section divides the matters I am to consider into primary considerations and additional considerations. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents. In the context of the relocation proposal in this case it is a meaningful relationship with the father that is important.
I am satisfied that the orders I have made will permit the children to continue having a meaningful relationship with the father. A meaningful relationship has been judicially defined as one which is important, significant and valuable to a child. It is to be noted that whilst the Act aspires to promote a meaningful relationship it does not refer to an optimal relationship. See for example Sigley & Evor (2011) 44 FamLR 439.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This does not arise in this case.
The additional considerations are found in section 60CC(3) and I shall discuss each paragraph in that sub-section in turn.
Paragraph (a) refers to any views expressed by the children and any factors (such as their maturity or level of understanding) that I think are relevant to the weight I should give their views.
The Court has the advantage of a Family Report from a psychologist Ms C. Ms C interviewed all of the children.
In relation to X, Ms C’s report says as follows:
73. X initially said he was unsure why he had to come to see me. He then surmised it was because “Mum and Dad are arguing”. He said neither of his parents had told him why he had to come to see me. After I explained, X emphatically said he did have a view on how much time he wanted to spend with each parent, going on to say “Maybe one week with Dad and one week with Mum”. He said he had thought of this arrangement because this accorded with what some of his friends did. X went on “I’d like more time with Dad”.
74. When he told his mother that he wanted more time with his father, X said his mother responded “Well it is how it is”. X was aware his father wanted more time with them. He told me he was upset when his parents separated at the beginning of last year and was not aware of them arguing much before this.
75. When he was with his mother, X told me he did not do very much. When he was with his father, X said they did “all kinds of stuff” including going shooting arrows and going to places such as the coast. X said his father’s new partner was “all right”. He said his mother’s new partner did not live with them but rather visited at weekends.
76. X thought he wanted more time with his father because he was a boy. He described his father as a good cook. X added that his father sometimes took them to (omitted), a local trampoline place. He volunteered they sometimes had barbecues and that sometimes Ms K’s friends, who he liked, came over. (Ms K is the husband’s partner). X told me that Ms K’s daughters were aged sixteen and nine. He liked the older girl but described the younger as “the troublemaker”. X had friends at school.
77. If he had three wishes, X said he would firstly wish to spend more time with his father. He was unsure what else he would wish for. X said neither of his parents had talked much to him about this dispute and said he was sad that they did not get on with each other.
78. If the Court told him he could not go week about X said he would feel “sort of annoyed and frustrated”. He would be happy if they said he could go week about. If they were allowed to move to (omitted), X said he would be “happy in one way and unhappy in another”. He explained he would be unhappy because he would be further from his father and happy to live at the coast. X said he would be “sad’ about seeing his father less often. Very decisively X told me he would rather stay in the Canberra area and see his father more often than move to the coast. He said his mother had not talked to him about moving.
In relation to Y, Ms C reports as follows:
82. Y told me neither of her parents had really told her why she had to talk to me. She then said she thought it was probably “to sort out who is best for me”. After I explained, Y told me she did not really have a preference about what she wanted to do. She liked the current arrangement. Y did not know what her parents wanted but surmised her father maybe wanted a bit more time with them.
83. In response to my query, Y told me she was sad when her parents separated. She told me her parents were arguing.
84. If the Judge told her she was to spend more time with her father than she did now, Y told me that she would not mind. If the Judge was to suggest that the current arrangements remained in place, Y said she would not mind that either. When I asked Y how she would feel about moving down the coast with her mother she commented that would be all right. If she was to move to the coast, Y speculated that she would see her father as much as she did now.
…
90. In conclusion, Y told me she would not be too upset whatever the court orders. Y told me her father looked after her well when she visited him and that both of her parents cooked for her. Y sometimes cooked as well. Y’s maternal great grandmother had accompanied them to the interviews. She told me that she had two grandmothers and her paternal grandfather. Her paternal grandfather lived down the coast and her maternal grandfather lived with her grandmother.
In relation to Z, Ms C said:
92. Z said she had to come to talk to me because she could. She immediately began to play with the toys and chatted about her painted fingernails. Z told me that she liked seeing her father but missed her mother. Z said she would like to see father more but was too young to discuss this further.
It is plain that X wants to spend more time with his father and if I were to accede to his wish then this would plainly preclude any relocation. I shall discuss this later in this judgment.
It is fair to say that Y adopted a neutral position and her views play no part in the decision that I have made.
I do not take account of Z’s views in light of her age.
Paragraph (b) requires me to consider the nature of the relationship of the children with each of their parents and other persons. I am satisfied that the children have a close and normal parent/child relationship with both their parents. Ms C administered the Bene Anthony test to X and Y. She reports that X’s results indicated that he was positively involved with both his parents and tended to deny any negative feelings to any family members. She reported that Y’s test indicated that her strongest attachment was to her mother. She reported that “Y was also mainly positively involved with her father although to a lesser degree.”
There is nothing to indicate any problems in the relationship between the children and the parties’ respective partners.
Paragraph (c) requires me to consider the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children, spending time with the children and communicating with the children. I have no criticism of either of the parties in this respect.
Paragraph (ca) requires me to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, that parent’s obligation to maintain the children. As I have indicated the father is paying child support as assessed. I need not rely on this paragraph.
Paragraph (d) requires me to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents. Obviously the move to (omitted) would involve a change in the children’s circumstances. I will discuss this later in the judgment. It would also involve their being separated from the father to a greater extent than would be the case were they were to continue to live in the (omitted) area.
Paragraph (e) refers to practical difficulties and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Obviously the move to (omitted) will have an impact on the children’s contact with the father. I will discuss this later in the judgment.
Paragraph (f) refers to the capacity of each of the children’s parents and any other person to provide for their needs, including emotional and intellectual needs. I need not rely on this paragraph as I have no criticism of either of the parties in this respect.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents and any other characteristics of the children that I think relevant. I need not rely on this paragraph.
Paragraph (h) refers to Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) requires me to consider the attitudes to the children and to the responsibility of parenthood demonstrated by each of their parents.
I have some criticisms of the wife in this respect. The first concerns her position in relation to the father’s spending time with the children during the last Christmas school holidays. She set out a proposal in relation to the time she proposed to spend with the children but when the husband responded two days later she advised that she had made commitments in the meantime and that there could be no compromise. Moreover her proposal did not involve the father spending time with the children over Christmas. Her response to this was that the husband, being of (country omitted) origin, did not celebrate Western Christmas but celebrated (country omitted) Christmas. There is evidence that this is not the case but in any event her response was somewhat disingenuous as her proposal did not include time over the (religion omitted) Christmas.
The second relates to the husband’s past. Prior to the parties’ relationship the husband served a term of imprisonment for assault. The children were unaware of this. Recently the wife took it upon herself to inform them. She said that it “slipped out” but I found this explanation unconvincing. There was no need for the children to be told and it could have an adverse effect on them.
Having said this I see no reason to assume that the wife will not comply with the orders I have made concerning the father’s time with the children.
Paragraph (j) refers to family violence and paragraph (k) refers to family violence orders and they are not relevant.
Paragraph (l) requires me to consider whether it would be preferable for me to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. I shall discuss this later in this judgment.
Paragraph (m) requires me to consider any other fact or circumstance I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
I shall now discuss the reasons why the mother wishes to relocate to (omitted). The authorities indicate that I should not treat this as a discrete issue and I do not do so. However it is convenient at this stage to deal with this aspect of the case.
As a backdrop it is to be noted that the wife, and indeed the husband, are very familiar with the (omitted). They would frequently spend weekends there during their relationship.
The wife’s parents have a home near (omitted) and spend their weekends there. Next year her mother intends to move there and the following year the father proposes to retire and move there. I regard this as an important issue. I do not underestimate the value of parental support, both emotional and practical, especially where one has a single parent.
The wife maintains that housing is cheaper in (omitted) than in Canberra. That is doubtless true but she is not required to live in Canberra. She conceded that housing in (omitted), which is near (omitted), was affordable although it must be said that there is no secondary school in (omitted) and the children would have to travel to secondary school. There is also the option of living in (omitted) which does have secondary schools. In all I do not place any great weight on the housing issue.
The wife says that she can obtain employment in (omitted). She says that a friend who runs a (omitted) has offered her employment. However there is no reason to assume that she could not also obtain employment in Canberra although perhaps if it were in (omitted) with a friend she could expect greater flexibility and perhaps more job security. Overall however I attach little weight to this aspect of the case.
In reality there is one over-riding reason why the wife wishes to relocate to (omitted). That is that she wants to live there. The question in this case is whether I should make orders which would preclude her from doing so. If I were to make orders as sought by the husband, or orders less expansive but which nevertheless involved handovers at school, then a relocation would be precluded.
As I have indicated I regard the fact that the wife’s parents will in time relocate to the (omitted) area as a significant issue. As I have indicated the wife’s mother plans to move to the (omitted) area next year and her father in 2017. Mr Howard, who appeared on behalf of the husband, pointed out that at present the wife sees her parents during the week for a meal with the children and that this would not be possible if she were to relocate to (omitted). However this is a somewhat short term view.
In this respect Mr Howard further submitted that it is premature for the wife to contemplate a move to (omitted) at the end of this year. He suggested that this issue should be revisited in 2017 when both her parents would be living in the (omitted) area. I am not enamoured of this proposal. Whilst it is possible that the parties would reach agreement as to a move at that stage there is no guarantee of this. Mr Howard’s proposal could well result in further litigation. Litigation itself is inimical to the best interests of children and in this case it would involve both personal and financial stress to the parties. In relation to financial issues it would involve the expenditure of resources that the parties could scarce afford. They are not sharing a large pool.
I assume that the wife will defer the purchase of a home until she moves. If this were delayed until 2017 she would face the vicissitudes of the real estate market for an additional year. By this I mean that she would face the risk of a real estate boom and its impact on her capacity to buy a property.
All in all I believe that “when ‘tis done then ‘twere well it were done quickly.” Or at least before 2017.
I shall now consider the options available to me. These are as follows:
(a)To make orders as sought by the husband.
(b)To make orders less expansive than those sought by the husband which would nevertheless preclude a relocation. For example, an order that he spend time with the children from after school Friday to the beginning of school Monday.
(c)To make orders as sought by the mother which would permit her to relocate.
I do not believe that it would be in the children’s best interests to make orders as sought by the husband. I shall explain why.
In this case, by consent, I have made an order that the parties have equal shared parental responsibility in relation to the children. Making such an order brings into play section 65DAA of the Act. That section addresses the issue of children spending equal time or substantial and significant time with each parent. In this case the husband no longer seeks equal time but does seek substantial and significant time. Substantial and significant time is defined in section 65DAA(3) as being time that children spend with a parent that includes days that fall on weekends and holidays and days that do not fall on weekends and holidays.
Section 65DAA(2) provides that where an order is made that children’s parents are to have equal shared parental responsibility and no order is made for equal time the Court must consider whether the children spending substantial and significant time with each of the parents would be in their best interests and consider whether such an order be reasonably practical. If both these requirements are satisfied the Court must consider making an order for the children to spend substantial and significant time with each of the parents. If either is not satisfied the Court cannot consider such an order.
Section 65DAA(5) sets out a number of matters the Court is to consider in determining whether such an order is reasonably practicable. This includes the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in arrangements for substantial and significant time.
I am not satisfied that the parties’ capacity to communicate is sufficient to adequately resolve difficulties that might arise if I were to make orders as sought by the husband. The parties have an acrimonious and un-cooperative relationship. The husband in answer to a question in cross-examination conceded that it was not possible for him and the wife to cooperate in relation to the children. This was in the context of an occasion where he unilaterally enrolled Y in netball. This involved games on a Saturday in (omitted) and he did not consult the mother in relation to this decision. In re-examination he said that Y had said that she would clear it with the mother but I found this explanation unconvincing. On one occasion the husband reported the wife to the Department of Family and Community Services which could not have improved the parties’ relationship. Any arrangement whereby the children spend time with the husband during the school week would of necessity require a reasonable degree of cooperation and communication between the parties and I am not satisfied that the parties have a sufficient ability to cooperate and communicate to support an arrangement of this type for the benefit of the children.
Nor am I satisfied that an arrangement proposed by the husband is in the children’s best interests. Throughout the whole of their lives the mother has been the children’s primary carer.

In refusing to make orders as sought by the husband I have not lost sight of or ignored X’s views which would support the making of such orders.
If there were no relocation proposal in this case I would have made orders that the husband spend time with the children from after school Friday to after school Monday (or Tuesday if a long weekend) each alternate week plus some time midweek once a fortnight together with half school holidays. Obviously this would preclude any relocation to (omitted).
I shall now discuss the advantages and disadvantages of my making an order which would allow the mother to relocate to (omitted).
The matters which would support my making orders which would prevent a relocation are several and cogent. They are as follows:
(a)The orders I have made will have an impact on the children’s time with the father and as a result have some impact on their relationship with him. He will not see as much of the children as he would have if I had made the type of orders set out in paragraph 91. As I have indicated I would have made orders for three nights a fortnight but this will now be reduced to two and his time with the children on the Friday will be reduced from what it would have otherwise have been. I accept that there are benefits to the children having Friday to Monday time with the father. Plus, as I have indicated, I would have provided for some mid-week time.
(b)There is going to be a degree of travel involved. It is said to be about 90 minutes from (omitted) to (omitted) although the father said, and he may well be right, that on a Friday evening when he will have to travel to (omitted) he could expect that the trip would be somewhat longer than this. Nevertheless I do not believe the amount of travel involved would be such that the children will regard travelling to see their father as a chore.
(c)The father’s ability to be involved in the children’s schooling and extracurricular activities will be significantly diminished. He is involved in these activities particularly in relation to X’s football. This will be significantly more difficult with the children living in (omitted).
(d)The children will have to change schools. With X this would happen anyway as he will be going to secondary school next year but Y will need to change schools while she is in primary school.
(e)The children have friends in the Canberra area and they will see a good deal less of them.
(f)The move will have an impact on the children’s weekend sporting or other activities. Each alternate weekend they will be in (omitted).
(g)X’s views are of significance. It is plain that he wants to spend more time with his father. Whilst he has no objections to the (omitted) per se he realises that he would not see as much of his father as he would if he were to live in the (omitted) area. It is possible that X may “vote with his feet” and go and live with his father. He will be 13 by the time of the relocation and the Court would be very reluctant to ignore his wishes if they were that he live with his father. This would involve a separation of siblings which would be undesirable. This is a significant factor in the case although it must be said that in any relocation case the views of a child cannot, in most circumstances, be decisive. Essentially decisions of this type are to be made by parents not children.
There are three reasons why I have made orders which will permit a relocation. These are as follows:
(a)I believe that the mother genuinely wants to move to (omitted) and would be very disappointed if she were unable to do so. I do not assess this as being a case where she would become depressed or find living in the Canberra area intolerable. Nevertheless I believe that she would be unhappy and this unhappiness would have an impact on her parenting capacity. It would probably rub off onto the children. Moreover I feel she would be resentful of the father whom she would see as, in a sense, holding her hostage. This would not be in the children’s best interests.
(b)There is the issue of family support. As I have indicated I regard this as very important.
(c)There is the issue of freedom of movement which I shall now discuss.
As I have indicated whilst the best interests of the children is the paramount consideration it is not the only consideration. In this case an additional consideration, which might be conveniently called freedom of movement, is involved.
The principles of freedom of movement in the context of a comparatively short distance relocation were discussed by the Full Court in D & SV (2003) FLC 93-137. That was an appeal from the decision of a judge who refused a mother permission to relocate with the parties’ three children. She wished to move from the eastern suburbs of Melbourne to (omitted) near Geelong. This was a distance of about 115km with the driving time said to be about 90 minutes. As I have indicated the driving time between (omitted) and (omitted) is about 90 minutes.
In the course of its judgment the Full Court quoted extensively from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 60; (1999) FLC 92-852; (1999) (“AMS”). That case involved an appeal by a mother who had been restrained by an order of the Family Court of Western Australia from relocating with the parties’ child from Perth to Darwin. In that case the Justices discussed principles of freedom of movement in the context of section 92 of the Constitution. Section 92 of the Constitution provides that trade and commerce and intercourse between the States shall be absolutely free.[1]
[1] In fact section 92 as such did not arise in AMS. As the proposed relocation was from a State, Western Australia, to a Territory, the Northern Territory, interstate movement did not arise. The discussion concerned section 49 of the Northern Territory (Self Government) Act. That is an Act of the Commonwealth. Section 49 provides that “trade, commerce and intercourse between the Territory and the States … shall be absolutely free”. Thus it mirrors section 92 of the Constitution. As it happened, and for reasons which I do not need to explain, the orders of the Family Court of Western Australia were made under State law and, by virtue of section 109 of the Constitution, the provisions of the Self Government Act prevailed over any inconsistent State law that trespassed on its area of operation in same way that section 92 of the Constitution prevails over the Family Law Act. The jurisprudence that has developed in relation to section 92 was therefore apposite.
The Justices in AMS explained that State or Commonwealth legislation, provided that it is directed to a legitimate object other than restraint of interstate movement, may as an incident impose restrictions on interstate movement. However the restrictions imposed by that legislation, and by judicial decisions made under it, must go no further than is necessary to achieve the purpose of the legislation.
In the case of the Family Law Act the object of the Act is to promote the best interests of children. To that end courts exercising jurisdiction under that Act may impose restrictions on interstate movement. But those restrictions must go no further than are required to secure the best interests of the children concerned.
The way I have described it from time to time in other cases is that the Court is not entitled to restrict interstate movement simply in order to achieve some Panglossian “best of all possible worlds”. Put another way, providing the Court can construct a vehicle that will adequately serve the best interests of children it is not entitled to restrict interstate movement simply in order to add bells and whistles to that vehicle.
Put in the context of this case the question is should the Court restrain the wife from relocating simply in order to add more time for the father to spend time with the children on the Friday and to include the Sunday night each alternate weekend and some time during the week?
I appreciate that this case does not involve interstate movement. However in my view the principles set out in AMS are not to be ignored. For example it is about ninety minutes travel from (omitted) to (omitted). Should an application to relocate from (omitted) to (omitted) be looked at less favourably than an application to relocate from (omitted) to (omitted)? (omitted) is slightly further away from (omitted) but by happenchance is on the southern side of the (omitted) and so is in Victoria. A constitutional lawyer may well accept that the two cases should be treated differently but I doubt that this view would be shared by many lay people. Or by anyone who was more concerned with substance than legalism.
I now turn to D & SV.
At paragraphs 37 to 40 of its judgment the Full Court said as follows:
37. While it was not a ground of appeal, we raised with Counsel for the respondent the issue of whether in the context of this relatively short move, the relocation principles in those cases [those cases are B & B: Family Law Reform Act 1975 (1997) FLC 92-788 and A v A: Relocation Approach (2000) FLC 93-035] should apply to this case. It was her submission that any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play. While we did not hear argument contesting that proposition, it seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
38. Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.
39. The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.
40. Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court.
At paragraph 46 of the judgment the Full Court quoted extensively from the judgment of Kirby J in AMS. The bolding is that of the Full Court. It quoted him as follows:
192. First, to impose upon a custodial (or residence) parent the obligation to demonstrate ‘compelling reasons’ to justify relocation of that parent’s residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate ‘compelling reasons’ imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.
193. Whilst a proposal to take a child to a place where it would be exposed to risks and dangers might, in a particular case, warrant a need for ‘compelling reasons’ such seems scarcely applicable for relocation within Australia. In the latter case, the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare …
194. Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the ‘paramount’ consideration in the exercise of jurisdiction such as was invoked here, they are not the sole considerations. … Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 [the latter is a reference to the Western Australian Family Court Act] is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
195. … the reason for the lack of attention to her alternative proposal arose from the conclusion that the arrangements in Perth were ‘ideal’ because they meant regular physical contact with both parents (and an extended family), whereas this would be diminished if the mother relocated. That approach impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contacts with the child of their relationship (and, it must be added, the child’s contacts with him). Whilst the last stated of consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court’s decision.
….
196. Any such alteration [of place of residence], with its practical consequences for the access to, and contact with, the father necessarily required a reconsideration of the issue of the residence of the child on the footing that the mother was to relocate to the Northern Territory. It required consideration in that context, of the acceptability of the alternative proposals which she advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated a consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child’s rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate. …
At paragraph 64 the Full Court said as follows:
We are of the view that … [the trial judge] unfortunately fell into the trap of requiring the mother to justify her move. If she could not do so then the status quo would have to prevail. In doing so her Honour transgressed the boundaries discussed by the High Court in AMS v AIF, especially in failing to evaluate all options to determine if the welfare of the children could fit in with the mother’s right to live where she pleased. It was very important to ensure an adequate ongoing relationship between the children and their father, but, as Mr P [the Expert who wrote a report in the matter] conceded, that could be achieved with the mother living in (omitted). In this he was clearly wrong and was operating outside the field of his expertise. In dealing with expert evidence it is important to be aware that the expert may be applying his/her own views about what is properly a matter for the Court to decide.
In summary it seems to me that the issue of freedom of movement may assume greater or lesser significance depending on the nature of the proposed relocation. If it were to a distant place and would impose severe restrictions on the other parent spending time with the child or children, and therefore have a significant impact on that parent’s relationship with the child or children, issues of freedom of movement will be less significant. But if it is to a nearby place and the impact on the other parent’s time with the children would not be drastically reduced it will play a more significant role, albeit that it cannot supplant the “best interests” principle as the paramount consideration.
I appreciate that AMS and D & SV were decided prior to amendments to the Family Law Act in 2006. In particular section 60B was redrafted in 2006. That section stated that children have a right to know and be cared for by both their parents and have a right of contact on a regular basis with both their parents. There was no equivalent of section 60B(1)(a) which I have quoted in paragraph 42. Section 68F of the pre 2006 Act was more or less the equivalent of the present section 60CC but it did not provide as a primary consideration the benefit to children of having a meaningful relationship with both their parents. However, as I have indicated, I believe the orders that I have made will enable the children to have a meaningful relationship with their father. Insofar as the amendment to section 60B is concerned I am not prepared to ignore the guidelines set out by Kirby J or the Full Court on the basis of the change in that section. If these are to be revised I am not the one to do it. Apart from consciousness of my position in the judicial hierarchy, to my mind, notwithstanding the changes to the legislation, what was said in those cases makes good sense.
In my opinion, if one were to ignore issues of freedom of movement and concentrate only on the best interests of the children, this would be a finely balanced case. On the one hand the children would benefit from more time with their father. X has expressed a wish to spend more time with him. He could have a greater involvement in their schooling and sporting and other extra-curricular activities. And there are the other matters to which I have referred.But on the other hand I believe the wife would be unhappy and resentful if her wish to live on the (omitted) were frustrated and that this would affect her parenting and rub off onto the children. And there is the very important issue of family support. In my opinion that fine balance is tilted by the freedom of movement issue in favour of orders which will permit a relocation. I have ordered accordingly.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Brewster

Associate:

Date: 8 May 2015

[2015] FCCA 984

8 May 2015

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