Tabac & Kelmer
[2016] FCCA 1937
•1 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TABAC & KELMER | [2016] FCCA 1937 |
| Catchwords: FAMILY LAW – Parenting – relocation – best interests of the children – ability to maintain meaningful relationship with geographical distance. |
| Legislation: Family Law Act 1975 ss.60CC(2), 60CC(3), 65DAA(1)(a), 65DAA(1)(b), 65DAA(2)(c), 65DAA(2)(d), 65DAA(3) |
| Cases cited: Bolitho and Cohen [2005] FamCA 458 Morgan & Miles [2007] FamCA 1230 Paskandy & Paskandy [1999] FamCA 1889 |
| Applicant: | MS TABAC |
| Respondent: | MR KELMER |
| File Number: | MLC 7389 of 2013 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 26 May 2016 & 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Morrison & Sawers Lawyers |
| The Respondent appeared in person. |
ORDERS
All previous parenting Orders be and are hereby discharged.
The Mother and Father have equal shared parental responsibility for the children X (“X”) born in 2007 and Y (“Y”) born in 2008 ("the children").
The children live with the Mother.
Upon the Mother’s partner obtaining full time remunerative employment with the Employer H in the City A area, and subject to order 5 hereof, the Mother be permitted to relocate the children's primary place of residence to Town B, Victoria, and pending such relocation, the children live with the Mother in Town M in order for her to comply with paragraph 6 hereof.
The Mother provide the Father at least 30 days prior written notice of the date of the children’s relocation.
Pending the relocation to Town B, the children spend time with the Father as follows:-
(a)each alternate weekend from the conclusion of school Friday until 6:30pm Sunday (or before school Monday at the Father’s election);
(b)for half of all school term holidays, as agreed between the parties, in default of agreement, the first half, from the conclusion of school on the last day of the school term until 6.00pm on the middle Saturday;
(c)as otherwise agreed between the parties in writing, such as via text message.
Pending the children’s relocation to the Town B area and to facilitate the Father’s time with the children, changeovers which do not occur at school shall occur at the C Store car park in Town M, or at any other location as agreed between the parties.
After relocating to the Town B area, the children spend time with the Father as follows:-
(a)during the school term, each first, fourth and seventh weekend:-
(i)from the conclusion of school, in the event that the Father elects to collect the children from school in Town B until 6.00pm Sunday, or;
(ii)from 6:00pm Friday, in the event that the Father elects for changeover to occur at Town O, until 6:00pm Sunday;
(b)should a public holiday long weekend fall during the school term, the children shall spend time with the Father for the duration of that public holiday long weekend:-
(i)from the conclusion of school, in the event that the Father elects to collect the children from school in Town B, or;
(ii)from 6:00pm on the last day of school for the week, in the event that the Father elects for changeover to occur at Town O, until 6:00pm on the day immediately preceding the children returning to school;
(c)for half of all school term holidays, as agreed between the parties, in default of agreement from 6:00pm on the last day of the school term until 4:00pm on the middle Saturday;
(d)for half of each long summer school holiday period as agreed between the parties, in default of agreement such time shall:-
(i)commence from immediately after school on the last day of the school year; and
(ii)conclude at 3:00pm on the middle Saturday of such school holidays in 2016/2017 and each alternate year thereafter, and
(iii)commence at 3:00pm on the middle Saturday; and
(iv)conclude at 3:00pm on the last Saturday of such holidays in 2017/2018 and each alternate year thereafter.
(e)on the Father's Day weekend each year from 6:00pm Friday until 6:00pm Sunday in the event the children are not already spending time with the Father;
(f)should the Father travel to Town B, then additional time in Town B as agreed between the parties in writing, such as via SMS text message;
(g)as otherwise agreed between the parties.
That Father, at his election and on 14 days written notice, may spend each alternate weekend with the children PROVIDED ALWAYS THAT one period of time per 4 weeks occurs within 100km from City A (or such other distance as may be agreed).
The Father's time with the child pursuant to paragraph 8(a) or 9 be suspended as follows:-
(a)during all school term holidays;
(b)during the long summer holidays;
(c)during the Mother's Day weekend each year in the event the children are not otherwise spending time with the Mother
Save as is otherwise provided for in these orders, after relocating to Town B, the parties or their nominee who is known to the children meet at the Hungry Jacks restaurant at the Town D Service Station, Town O unless as otherwise agreed between the parties.
For the purposes of paragraphs 8(a) and 8(b) hereof, the Father provide not less than 72 hours’ notice to the Mother, via SMS text message, as to his intention regarding where changeover shall occur (i.e. at the children's school in Town B or at Town O or such other location as agreed between the parties).
The children be permitted to communicate with the parent with whom they are not with every second night between 4:00pm and 4:30pm, unless otherwise agreed between the parties.
Commencing forthwith, the Mother and Father:
(a)keep the other advised at all times of their respective residential addresses and mobile telephone;
(b)advise the other immediately in the event that the children or either of them suffers any serious illness or injury;
(c)authorise any medical practitioner or allied medical practitioner upon whom the children or either of them may attend from time to time, to communicate with the other in respect to the children's medical condition and/or requirements;
(d)advise the other of all sporting and extra-curricular activities in which the children or either of them are involved and permit the other to attend such functions;
(e)authorise all school at which the children or either of them may attend, from time to time, to:
(i)provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children's progress at his school;
(iii)permit the other to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.
The parties, their servants and agents be and are hereby restrained by injunction from abusing, belittling, rebuking or otherwise denigrating the other parent or any member of their household or family in the presence or hearing of the children or either of them or permitting any other person so to do.
Liberty is granted to the parties to provide a copy of these Orders to any one or more of the following:-
(a)the Principal or delegate of the Principal of the school and attend from time to time by the children, or either of them;
(b)any medical practitioner and/or allied health professional attending upon the children, or either of them.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tabac & Kelmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SHEPPARTON |
MLC 7389 of 2013
| MS TABAC |
Applicant
And
| MR KELMER |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in relation to two children X born in 2007 (“X”), who is 9 years old, and Y born in 2008 (“Y”), who is 7 years old (“the children”). At the time of the final hearing the children live with the Mother in the Town M area and spend time with their Father every second weekend during the school term from after school on Friday until Sunday afternoon. The children also spend school holidays and special occasions with each of their parents.
The Father lives in the Town M area and has no intention of changing his place of residence. He seeks that the present arrangements continue and is opposed to any relocation of the children’s home from the Town M area.
The Mother has applied to live in Town B with the children, her partner Ms N and their two children, P who has just turned 2 years old and Q who is 10 months old.
In order to accommodate the three and half to four hours travel time between Town M and Town B, the Mother proposes to reduce the frequency of the children’s time with their Father during school terms to every third weekend, rather than every second weekend. Alternatively, if the Father was prepared to travel within a reasonable distance of Town B alternate weekend time should remain, with the children travelling to the Town M area once per month and spending time with the Father in the Town B region once per month.
There is no dispute between the parties that they should each have equal shared parental responsibility for the children or that they should spend half school holidays and periods of time on special days with each of their parents.
There is a dispute between the parties as to the frequency of telephone time between the Father and the children. As has been his habit, the Father would like to call the children each day, whereas the Mother would like to reduce the telephone communication to 2 occasions per week.
The background
The agreed or relatively non-controversial facts and matters in the proceedings are as follows.
The Mother was born in 1973 and is 42 years old. She is employed as a customer service officer in the Town M area. In the event she is permitted to move with the children to Town B she is confident that she will be able to transfer her employment to the local area.
The Father was born in 1979 and is aged 37 years old. He describes himself as a professional. He is employed on a full-time basis and is generally required to travel around the state of Victoria for his employment.
The parties commenced cohabitation in 2003 and separated in 2011.
The children have an older sister Ms R (“Ms R”), who is a child of the Mother from a previous relationship. Ms R is now aged 19 years and has a child of her own. She lives independently of the Mother in Melbourne. Ms R lived with the parties during their relationship.
The children were born in 2007 and 2008 respectively and at the time of separation were aged 4 and 3. Following separation the children spent every weekend with their Father and the remainder of the week with their Mother. This was initially accommodated by the Mother remaining in the family home and leaving on weekends when the Father returned home after working away. In January 2012 the Mother obtained separate rental accommodation in the Town M area. The shared care arrangement continued until July 2013, at which time the children commenced spending time with their Father every second weekend from 3:30pm Friday until 6:30pm Sunday. When X commenced school in 2013 the Mother felt that the children were having difficulties with spending every weekend with their Father and felt that she was not spending sufficient leisure time with them. As a result the arrangements changed.
The children attend E Primary School. X is in year 3 and Y is in year 1. The children have formed social connections and are doing well at school.
The Father has re-partnered with Ms F (“Ms F”) and commenced his relationship with her in 2012. Ms F and the Father commenced living together approximately 2 years ago and there are no other occupants of their household, save for the weekends when the children are in attendance.
The Mother has re-partnered with Ms N (“Ms N”) in a same-sex relationship. They also commenced their relationship in 2012. Ms N and the Mother have two children together.
The Mother and Ms N purchased a home together in Town M in 2015. Although Ms N spends some time at her nearby parents’ home with P and Q, the family, consisting of the Mother, Ms N, X, Y, P and Q, spend most of each week together.
In June 2015 the Mother advised the Father by text message of her desire to move with the children to Town B.
Ms N is employed as a public servant in the Town M area. She works full time. She is 37 years old and wants to continue her employment as a public servant, hoping to advance her career in the public service. In order to do that, Ms N and the Mother view a move to Town B as enhancing her career prospects, as the prospects of advancement through the service are better in Town B than in the Town M area. Ultimately, Ms N would like to be employed in the Employer H unit. In order to achieve that she would need to be transferred to an office in the Town B area (being either the Town B or City A offices) and apply for a promotion from within the area.
There is no dispute between the parties that the children have a loving and appropriate relationship with each of their parents.
In August 2013 the Mother initiated property proceedings which were resolved by consent in October 2014.
The current proceedings were issued in October 2015. Following unsuccessful alternative dispute resolution, the matter came before the Court in the November sittings of the Shepparton circuit when the matter was listed for final hearing in the following circuit with orders for the preparation of a Family Report. The Family Report was prepared by Family Consultant Ms J (“the Family Report Writer”) and was released in late January 2016.
The matter was listed for final hearing in March 2016 but was not reached on that occasion. Accordingly, it was listed in the May sittings of the Shepparton circuit with priority.
The Mother
The Mother gave evidence and was cross-examined by the Father. She did not present as a particularly sophisticated person, however, was clearly devoted to her children. From time to time, particularly while being cross-examined by the Father himself, she appeared somewhat confused and was unable to acknowledge the role that the Father would play in the children’s lives in the event that relocation was permitted. For instance, when asked who would provide a male role model for the children, she was unable to appreciate that the Father would still continue in that role and instead referred to other males within the family. Notwithstanding those issues I had the valuable opportunity to observe the Mother giving her evidence against the backdrop of the history of this matter and the style of care which has been provided for the children by the parties. I am satisfied that the Mother has a genuine commitment to the children’s relationship with their Father and the paternal family and she sees those relationships as important to the children’s welfare. I am therefore satisfied that the Mother will not only facilitate the children’s relationship with their Father but also promote that relationship in a flexible and child focused way.
The Mother indicated that in the event that the children were not permitted to relocate that she would not relocate without them. That position was consistent with her overall presentation as child focused and committed to the children.
The Father attempted to persuade the Court that the Mother was seeking to minimise and marginalise him in the children’s lives. My overall impression of the Mother was that this was not so and the application to move with the children was not in any sense based around a desire to diminish the relationship between the children and their Father.
Although the Mother does not seek to suggest that the history of her relationship with the Father should in any way impact on the ongoing relationship between the children and their Father, she sets out the history of the parties’ relationship and the unhappiness within it, particularly towards the end of their relationship. Although it might be said that such matters are rendered largely irrelevant given the Mother’s position in the proceedings, such matters are relevant in the assessment of the overall desire of the Mother to pursue her relationship with her partner and make choices with respect to the future conduct of their lives, which promotes both their relationship and a desire on the Mother’s part to support Ms N’s career.
The Mother has lived in Town M, or the Town M area, for all of her life. Her mother resides in Town M but is in ill health and has suffered a brain injury after a stroke. She has two half siblings in Town M but does not have a close relationship with either of them. Her father lives in Queensland. In those circumstances, the Mother has little family support in the Town M area.
Ms N has family in Town B, and the Mother says, and I accept, that both she and Ms N are very close to them. Ms N has a sister and brother-in-law in Town B who have four children, two of whom are of a similar age to X and Y.
The Mother currently works part-time at Employer S, undertaking evening shifts from 5:30pm until midnight.
The Mother proposes that the children attend a Catholic school which she says has been a preference for both her and the Father, although she has not yet made firm arrangements for that to occur.
The Mother’s proposal was to move during the second term school holidays in July 2016, but only if Ms N had secured a position in the Town B area.
She suggests that the Father should spend time with the children every third weekend, with changeover to occur at Town D Service Station in Town O. That changeover point is 189 km from Town B and 144 km from the Father’s home.
The Mother’s further proposal was that the children spend half school term holidays and half of the long summer holidays with the Father, with alternating Christmas periods.
An issue which emerged during the hearing was the restriction of Ms N’s attendance at changeover. Due to the apparent antipathy between Ms N and the Father, the Father has sought an order that she not be in attendance at any changeover. The Mother would seek to have Ms N accompany her on what would seem to be a relatively lengthy trip and as such proposes that Ms N be permitted to attend at changeover.
As was recommended by the Family Report Writer, the Mother is prepared to undergo counselling and also proposes that the Father telephones the children on two occasions per week.
In her affidavit, the Mother discusses her relationship with her 19 year old daughter Ms R. She concedes that over the last four of five years her relationship with Ms R has at times been strained and that Ms R was not very accepting of her same-sex relationship. This resulted in Ms R distancing herself from the Mother and calling her derogatory names. It would seem that Ms R was experiencing a number of personal difficulties during this period. However, since the birth of Ms R’s daughter T, who was born in 2015, the Mother’s relationship with Ms R has repaired and they talk each day. The Mother’s evidence was that in the event that Ms R wished to live with her in the Town B area she would be welcome within the home. I note that this is at odds with the evidence of Ms N.
During the relationship between the Mother and the Father, the Mother says it was agreed that she would fulfil the role of primary carer for the children, and in the circumstances, she was the primary carer of the children whilst the Father fulfilled the role of primary breadwinner.
Although the Mother does not suggest that these issues should impact on the ultimate outcome of the proceedings, and in particular the Father’s meaningful and ongoing relationship with the children, she describes a period of unhappiness within the relationship, specifically towards its conclusion. At the end of the relationship there were clearly numerous issues which caused the breakdown, including the apparently difficult relationship between the Father and Ms R (which the Mother describes as conflictual).
The breakdown of the relationship also heralded the breakdown of the Mother’s connections with the paternal family, and she describes not having spoken to the Father’s family for years. She also says that following separation the children spent every weekend with the Father for a period of around 18 months and also described a situation where the Father has been habitually telephoning the children every day.
The Mother describes a particularly volatile incident in the middle of 2013 where she alleges the Father was verbally abusive and threatening towards her in a heavily intoxicated state. As a result of that incident the police obtained an Intervention Order against the Father. A twelve month order was made on 23 July 2013. The Father consented to the Intervention Order being made with no admission of the allegations made in the complaint.
The Mother formed a relationship with her partner Ms N in 2012 following the conclusion of the relationship with the Father. They are committed to one another and if they were able to legally marry they would do so. P and Q were conceived by in vitro fertilisation via an anonymous sperm donor. The Mother is registered as a parent on P and Q’s respective birth certificates and they are the brother and sister of X and Y.
Ms N occasionally stays at her parents’ house in Town U, but rarely do P and Q spend overnights there. At present, Ms N’s parents’ house is on the market for sale as they have purchased a property on the Region K and relocated there in early 2015.
The Mother describes the children’s adjustment to the new family and the arrival of their new brother and sister. She describes the children as having a good relationship with their younger siblings.
From the Mother’s perspective the Father has not responded well to her relationship with Ms N and has allegedly made disparaging comments regarding the relationship and the birth of their children. It would seem that the Mother perceives the Father as struggling with her relationship and at times has directly interfered in their relationship, for instance, threatening to apply for an Intervention Order against Ms N and making complaints to her Manager at the Town M office in relation to her.
The antipathy between the Father and Ms N, at least from the Father’s point of view, is palpable. The Mother describes an incident where X and Y were having their first day at school and he sent the Mother a text message as follows:-
“please let me know what time you and the kids are going to be at school tomorrow please refrain from bringing your partner as it makes the children very uncomfortable and I would like them to be happy and comfortable on their first day your partner robbed me of the privileged to walk my daughter into her first day of school last year and until all court items are settled I don’t want your partner to be involved in anything that is the right of the children’s paternal parents she is more than welcome to walk them in on Friday if she so wishes the children will be a lot more relaxed if it is just you and I the last time she turned up X couldn’t get away quick enough which is quite upsetting I’m sure you don’t want to add any unnecessary stress to the children if there’s going to be any issues with this have your Sollicitor [sic] contact mine there’s no reason for reply to this text other than letting me know what time your getting to the school thanks” [sic]
Ms N did accompany the Mother to school on the first day, and the Mother asserts that she overheard the Father say to the children “why the bloody hell would she bring her”.
The Mother describes some behavioural difficulties experienced by X in 2014, when he was unsettled and engaging in rough play with Y. The Mother had accessed a Clinical Social Worker to counsel X and his behaviour subsided throughout the latter part of 2015 and early 2016.
Ms N
Ms N attended Court, gave evidence and was cross-examined.
She described her relationship with the Mother as a committed relationship and specified that they had purchased a home together in Town M.
Ms N reported that she had been acquainted with the Mother since 2005 and therefore has known X and Y, albeit from a distance, since their birth. Since the Mother and Ms N commenced their relationship she has spent significantly more time with the children and describes spending time with the children, essentially, each weeknight and on weekends when they are not spending time with their Father.
Ms N is employed as a public servant in the Employer H and has been an employee of the public service since 2010. She has had various postings throughout Victoria, however, is now stationed permanently at Town M. She has worked at the Town M office for five years as a public servant.
In her affidavit material, Ms N sets out that the reason for the move to Town B was primarily for the purpose of enabling her to apply for a promotion to a position in the Employer H unit. Additionally, Ms N’s sister, brother-in-law and their children resided in Town B. Ms N describes herself as being very motivated to work in the Employer H unit. She says as follows:-
It is highly unlikely that such as [sic] position would be available to me at the Town M office. Employer H preference given promotions to officers who have undertaken work in a regional area and who have recently transferred to the office where the promotion is based. I am therefore confident that I could secure a position either [sic] the Town B or Employer H. The only realistic way I could secure a job in Employer H based in Town M is to wait for an existing employee to retire.
She goes on:-
Before I would be eligible to commence working in the Employer H, I must undertake specialist training at the Employer H in Suburb L, which involves a specific course of training. I am required to be stationed at the office at the time of my application to Employer H, which means that I will need to have transferred to Town B or City A office before applying.
She also sets out that she has had a position at Town B office offered to her within the last 12 months, however, had to turn down the offer given her inability to move, consequent upon her desire to be close to the Mother.
In the event that Ms N was ultimately accepted as a public servant, there would be an increase in income of approximately $15,000 per annum. Ms N describes it as being best for her career to relocate to the Town B area, and says it is untenable for her to move without the Mother. Ms N explains that whilst she has a number of siblings, that she derives the most support from her sister who lives in Town B. This evidence was largely unchallenged.
During cross-examination Ms N was cross-examined as to her relationship with Ms R. Ms N had obtained an Intervention Order against Ms R. Ms N’s evidence, which I accept, was that Ms R had a troubling and difficult time, was telephoning Ms N at work, and Ms N’s supervisor took out an Intervention Order on Ms N’s behalf.
What is apparent, and confirmed by the Mother, was that Ms R found the Mother’s relationship with Ms N difficult to come to terms with and had a volatile emotional reaction to it.
Ms N’s evidence was in conflict with the Mother’s regarding Ms R. Whereas the Mother had indicated that Ms R would be welcomed into their household in Town B, Ms N said she and the Mother had decided that Ms R could not move in with them. This discrepancy is of some concern and at the very least, raises a concern that the Mother was unwilling to make appropriate concessions if such matters were likely to detract from her case.
Nevertheless, I am satisfied that Ms N was a truthful witness.
Ms N presented as a witness experienced at giving evidence. With regards to the living arrangements of herself and the Mother, she indicated that they currently do not live together and had decided they would not live together until they relocated. She also conveyed that she received a sole parenting allowance through Centrelink.
In terms of the Mother and Ms N’s living arrangements, I have a lingering feeling that their description of their living arrangements revolve around external factors, rather than any real expression or description of how they live each day. On balance, the more relevant assessment is of familial circumstances and I note with some interest the children’s description of their family to the Family Report Writer.
I am satisfied in these proceedings, having had the opportunity to observe the Mother and Ms N give evidence and considering the history of their relationship, their joint parental roles, the enduring nature of that relationship and their commitment to their relationship in the face of strong opposition from significant others, that their relationship is strong and connected.
Quite fairly, Ms N also commented that she does not have a guaranteed position in the Town B Area. As is conceded by the Mother, there should be no relocation unless and until such a position, if any, becomes available.
During evidence, Ms N was able to identify the ongoing role of the Father in the children’s lives. She told me that she acknowledged and was committed to a continuation of that role and I accept her evidence as being genuine and a sincere expression of her intention.
Overall, I have assessed Ms N as a positive contributor for the children in terms of their ongoing, significant and meaningful relationship with the Father.
Ms N was also interviewed by the Family Report Writer during the preparation of the Family Report. During the interviews she expressed her support for X and Y having regular time with their Father and paternal family members. However, she does acknowledge that she and the Father have a strained relationship.
In the event that Ms N is able to apply for a position elsewhere the procedure within the public service is that she will be told to relocate within six weeks. Ms N confirmed to the Family Report Writer that until relocation she and the Mother are to maintain two family homes, however, shall spend a large amount of time together in one household.
In one incident of a disputed fact which has been the source of some consternation for the Father, it was acknowledged during the Family Report that Ms N was required to speak to the Father during the course of her employment and that this singular incident has impacted on any possibility of positive communication between she and the Father. However, Ms N was able to speak very positively of the care the Mother and the Father have given the children but felt that the Father struggled to be more accepting of the children’s relationship with P and Q.
The Father
The Father appeared as a self-represented litigant, gave evidence and was cross-examined.
He was emotional and angry at the prospect of the children being removed from the Town M area, and quite clearly he regarded the children’s relationship with him as being the most important factor. His perception of the move was that it would dramatically diminish his relationship with the children, as well as their relationship with the paternal family, who also live in the Town M area. The Father was unable to contemplate in any real way that the children might move away from him, and was from time to time quite agitated when being cross-examined. The Father’s sentiments are understandable. Quite clearly he has prioritised both his relationship with the children and their welfare during their childhoods. He devotes a great deal of attention towards ensuring that they have a happy and fulfilling relationship with not only him but also other important people in their lives, such as their step-mother Ms F and the extended paternal family.
The Father described what he and the children do when spending time together, which on numerous occasions involves active pursuits such as camping, fishing and motor bike riding. The Father has also purchased a speedboat and would like to teach the children how to ski. Quite clearly, the weekends the children spend with the Father are devoted to spending time together as a family. Whatever the outcome of these proceedings I have no reason to believe that the Father’s adherence and devotion to the children and their welfare will not continue, and that much was conceded by him.
The Father told me that he regarded the travel to Town B as arduous, particularly given that although he lives in Town M he can often be working a much greater distance from Town M, entailing lengthy travel to even reach a meeting point in Town O. He told me that he has some flexibility with his employment and would be able to arrange an earlier finishing time on a Friday. However, he was still concerned that given the unpredictable traffic that he would still end up rushing to get to the changeover point on time.
Although the Father did not significantly quibble with the Mother’s assertion that she was primary carer of the children during the relationship, he stressed that he was an active and involved Father during that time. He told the Court that he enjoys the ad hoc contact he has with the children and speaking with significant people in the children’s lives (such as their teachers), which he is able to currently undertake by virtue of his close proximity to their primary home. He says, for instance, that he will often attend their sporting events, even on weekends when they are not spending time with him, and enjoys having informal chats with their teachers, together with other involvement in terms of formal parent-teacher interviews.
I have no reason to doubt that the Father is anything but a devoted Father, who is committed not only to the care of the children but also to the maintenance of their familial relationships and their ability to reach their full potential not only academically, but also personally and socially.
I am satisfied that there was some unpleasantness between the parties around the time that their relationship was dissolving and shortly thereafter. The Mother alleges that the Father drank to excess and was abusive towards her, and I find on the balance of probabilities that is likely to have occurred. I note that the Father does not really discuss those allegations in his affidavit material and instead simply states his denial. Furthermore, the style of his interaction with the Mother, as evidenced by the text messages annexed to the Mother’s affidavit, demonstrate that the relationship between the parties is fraught with conflict and tension.
From the Father’s point of view, he found the Mother’s same-sex relationship with Ms N quite confronting on a number of levels. Firstly, no doubt he is concerned about the impact of that relationship on the children. It would seem from the Family Report that he has made disparaging comments in relation to this. For example, although denied by the Father, he told Y that ‘girls do not kiss girls’. Further, subjectively at least, he has perceived Ms N to be overtly hostile towards him and uses her position as a public servant against him. He told the Family Report Writer, for example, that Ms N and her partner have spoken to him for questioning on three occasions, some in the early hours of the morning.
I had the valuable opportunity to observe the Father in Court and it would seem to me that he is quite outraged by the prospect of his children being removed from the Town M area on the basis that Ms N wants to further her career. My observations of the Father are that he tries very hard to contain his aversion to the Mother’s relationship with Ms N and towards Ms N herself, but that aversion simmers away, barely below the surface.
Furthermore, the Father’s stance with respect to not wanting Ms N at changeovers is demonstrative of his dislike of her.
I also note that the children were demonstrably aware of his antipathy towards Ms N. For example, Y told the Family Report Writer that she doesn’t talk to the Father about P and Q because he gets ‘upset’ and she then feels sad. Perhaps most significantly, X named the members of his family for the Father to draw and did not include Ms N, P and Q. X waited until the Father had left the room and was alone with the Family Report Writer before adding them.
The Father told me that he would like the opportunity to exercise time with the children every second weekend, in which instance he would exercise that time on one weekend in the Town B area – possibly at Town V – and the other weekend in Town M.
The Father sets out the sorts of detriments to the children that would result from a move. He is concerned that the proposed relocation will not only impact on his time in terms of frequency and length but also impact on the quality of such time. He feels he would not be able to have the same sort of intimate relationship with the children at school where they can show him things in the classroom, and he could not regularly attend sporting events or school occasions and that the children would be less receptive to him as they would be tired from travel.
He suggests that he has not spoken about Ms N and the Mother in a negative way in front of the children. However, having regard to the matters that I have set out above I do not regard that as being accurate.
Further, the Father also believes that Ms N is antagonistic towards him. I saw nothing of that nature in her presentation.
The Father also sets out that the children have extended family including cousins, aunts, uncles and their paternal grandparents living in the Town M area, with whom they are very close.
He has lingering concerns about the Mother’s ability to properly and adequately communicate with respect to the children’s health issues. He quite clearly enjoys the telephone communication that he has with the children each night.
Although in his affidavit material the Father said that he would consider purchasing a property in Town V if the relocation was to occur, he told me during his evidence that he did not believe that was now a financially viable option.
Finally, in contemplating the proposed relocation, he would regard the beginning of the 2017 academic year as an appropriate time for the children to change schools.
It is not surprising that the Father considers the move a catastrophe. The Family Report Writer accurately describes the Father’s perception as not having done anything to “deserve” the children relocating with the Mother to Town B, nor the impossible task of maintaining an active role in the family dynamic and the parenting of X and Y. The Family Report Writer accurately suggests that this view is naive and his current perception of his persecution as well as his non-acceptance of the change within the children’s family dynamic will bring about adverse emotional pressure on X and Y and will contribute to the mistrust and negativity that currently exists. The Family Report Writer also observed that the Father had limited insight as to how the children may feel pressured not to talk about their Mother, Ms N, P and Q.
The Family Report
Family Consultant Ms J (“the Family Report Writer”) interviewed the parties and the children on 13 January 2016 and prepared a Family Report.
After setting out a history of the relationship and what has occurred since the breakdown of the marriage, the Family Report Writer said that the Father was of the belief that Ms N was influencing the Mother to relocate and asserted that Ms N had articulated her disdain towards the Father in the past through facial gestures toward him when she would accompany the Mother at changeovers.
The Father also referred to the incident where Ms N, whilst at work with her partner, had questioned him. He said that this occurred on three occasions, following which he went to the employer and made a complaint about Ms N harassing him. Upon questioning Ms N about the incident the Family Report Writer recorded that Ms N had denied taunting the Father but agreed there was one occasion in which she and her partner had spoken to the Father at 4.00am and had questioned him as they would have any other citizen travelling at such an early hour of the morning.
The Family Report Writer recorded the various proposals of each of the parties and the main dispute before the Court as being the capacity of each parent to attend to the emotional, physical and cognitive needs of the children whilst each facilitating and encouraging the children to have a relationship with the other parent, half siblings and extended family members. The Family Report Writer said:-
…the children’s past and ongoing exposure to the conflict between the parents, the capacity for the father to become more accepting of the children’s family dynamic their mother and Ms G have committed too, resulting in siblings for X and Y, the mother’s request to relocate to Town B with the children and the effect such a relocation will have upon their relationship with their father and for consideration to be given to any views the children may have.
In describing the Father, the Family Report Writer styled him as a very caring father who “wants to maintain an active role in parenting his children and expressed regret at his relationship with Ms Tabac not being more positive”. The Father described his position that the children were settled at school, spent regular time with their paternal family and have an established and workable routine. He recorded his desire to be involved in the children’s schooling and suggested that it would be “impossible” to maintain his attendance at sporting events and be informed of the children’s academic progress at school if the children relocated from the Town M area. The Father spoke of their activities on weekends and expressed concern at the extensive travel for the children if they were to relocate to Town B. The Father asserted to the Family Report Writer that he believed the Mother’s request to relocate was more to do with her relationship with Ms N and that Ms N was influencing the Mother to relocate.
It was the Father who suggested that the Mother and Ms N were not living together as a family. He also recorded his belief that the Mother and Ms N had commenced a relationship when the parties were still together, which is denied by the Mother. In respect of the Father’s capacity to support and accept the relationship between the Mother and Ms N, the Family Report Writer said:-
Mr Kelmer struggled to be positive towards Ms G even when the writer asked how X and Y referred to her and their younger siblings. Mr Kelmer’s response was that they never talk to him about them and that he has nothing to say to X or Y about them. He denied making comments to Y that ‘girls do not kiss girls’.
In an emotional statement which echoed my observations of the Father in Court, the Father told the Family Report Writer that “he cannot live without his children; he has done nothing wrong and has maintained a stable relationship with Ms F since meeting in April 2012…”. However, he did describe the Mother as a good mother.
The Mother was interviewed for the preparation of the Family Report. The Family Report Writer recorded that she “was slow in her responses and vague in articulating her answers”. When setting out her reasons for seeking to relocate to Town B, the Mother reported that “she wanted to relocate with Ms G to enable them to live together more permanently and for Ms G to have access to more opportunities for promotion within the public service”. The Mother set out various other matters including that it would be a “fresh start” for her and Ms N.
The Family Report Writer described the Mother as struggling to have insight in to how the children’s emotional needs were being met and also made the observation that she thought the Mother “projected her needs as being those she was seeking for her children or of those she thought the writer wanted to hear”.
The Mother raised concern that the Father was not positive towards the children and spoke of her hope that the Father would become more accepting of her new family dynamic, as it would allow the children to be more comfortable and communicate better with the Father, instead of them only telling him what he wants to hear. The Mother reported that she thought that “Y is excited about relocating whilst X is anxious about his time spent with his father and leaving his friends”.
The Family Report Writer interviewed Ms N.
The Family Report Writer did not see the Mother and her younger children, P and Q, together during the report process. Accordingly, the only evidence available for assessment of their relationship is the evidence of the Mother and Ms N.
Further, the children in the Family Report interviews and in particular X, clearly regarded P and Q as part of the family. For example the Family Report Writer noted that:
…when he [X] was asked to name his family, whilst his father drew them for him, X waited until he was alone with the writer to make sure Ms N, P and Q were included
The Family Report Writer set out that stability was important but also reported that “the children are of an age and developmental stage to make adjustment in in [sic] changing schools and in making new friendships”. She also observed that the children possess “appropriately developed social skills and are articulate in their communication”.
The Family Report Writer noted that the children were warm and affectionate towards each of their parents and that the parents are committed parents. Ultimately, the Family Report Writer suggested that:-
…a determination about what to do is probably best guided by consideration of what arrangement will best allow the children to have a safe relationship with their mother, their father and extended family members.
The Family Report Writer recommended equal shared parental responsibility and that the Mother and Ms N maintain living within one family home in the Town M area. Further, she recommended counselling for both of the parents, which both parents have agreed to, and that the Father attend a “Hey Dad” program. Ultimately, she said that once the Mother and Ms N have lived together, then such relocation as sought by the Mother should occur at the commencement of the school term.
I do not understand the recommendations of the Family Report Writer with respect to the living arrangements for the Mother and Ms N. On any view, the Mother and Ms N have been spending significant time together and the maintenance of two households would seem to me to be by virtue of circumstance rather than any real difficulty with the family blending together in one home.
Ultimately the observations made by the Family Report Writer are valuable and provided a good description of the relationships between the children and their parents. Whilst I value and assess the recommendations of the Family Report Writer, as in any case, the assessment must be made on numerous grounds.
The Law
Relocation cases are amongst the most difficult proceedings to be considered by the Court. They inevitably involve the valid and competing desires of parents, which each have merit.
In these proceedings the Father loves his children and wants to remain involved in their lives in a similar and intimate way that has occurred since the parties separated. He says that the close relationship which he enjoys with the children will be inevitably disrupted by the proposed move to Town B due to the arduous requirements of travel and his inability to be involved in the children’s lives in an ad hoc way, such as informal involvement with their school and the school community and attendance at sporting events each weekend.
The Father said, and I accept, that the children will be burdened by the length of travel. For example, he explained that Friday nights, which are currently an enjoyable and relaxed end to the school week, would be impacted, in that no sooner would the children be home that they would be in bed and asleep because of the burden of travel from Town B.
On the other hand, the Mother has established a secure and committed relationship with Ms N and they see a future together. It is understandable that the Mother would want to support Ms N in her career path and parent their children with the support and assistance of Ms N’s close family.
The jurisdiction of the Court is not to restrain a parent from moving but rather to assess and make a determination of where the children should live having regard to their best interests. The Mother has understandably said that she will not relocate her own residence if the children are not permitted to relocate with her. Although the Father said that he would be prepared to care for the children on a full time basis, he did not seriously pursue that option given the Mother’s position. I note that the Mother’s position does not detract from her sincere desire to live in the Town B area with her family, nor does the Father’s position detract from his unwavering desire to have the children living in the Town M area.
The consequence of those positions is that the case will be assessed on the basis that the children will live primarily with the Mother, regardless of the outcome of the assessment of the parties competing proposals.
In this matter there are a number of propositions with respect to cases of this nature that emerge from the authorities:-
a)that the child’s best interest remain the paramount but not the sole consideration (Morgan & Miles [2007] FamCA 1230);
b)that a parent wishing to move does not need to demonstrate “compelling” reason (Morgan & Miles [2007]);
c)“the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement” (Morgan & Miles [2007]);
d)“There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted””(Paskandy & Paskandy [1999] FamCA 1889);
e)“…the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) [now s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child” (Bolitho and Cohen [2005] FamCA 458).
The children’s best interests are paramount in these proceedings. In determining the best interests of the children there are two primary matters or considerations and several additional matters or considerations to take into account.
The primary considerations are set out in section 60CC(2) of the Family Law Act 1975 (“the Act”), and accordingly I must consider: –
a)the benefit to the children in having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There is no dispute between the parties that the children should have a meaningful relationship with both of their parents. A meaningful relationship presently exists for the children and will continue. In McCall & Clark [2009] FamCAFC 92 the Full Court of the Family Court of Australia noted that the Family Law Act itself does not provide a definition of the word “meaningful”. Their Honours did however note with approval the views of Brown J in the first instance decision of Mazorski v Allbright [2007] FamCA 520, where Her Honour thought that the term was “synonymous” with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Quite clearly these concepts involve an assessment of the children’s relationships with their parents in a qualitative sense rather than a quantitative sense.
At the present time, and in the widest sense of the word meaningful, the children have an existing meaningful relationship with both of their parents and they derive benefit from those relationships.
Although there are historical issues with respect to family violence issues, sensibly, neither party has sought to press such matters, nor any issue as to the need to protect the children from physical or psychological harm.
Parental responsibility
There is no dispute between the parties that they should have equal and shared parental responsibility for the children. That order is agreed as being appropriate in the circumstances.
In circumstances where equal shared parental responsibility will apply, the Court must consider, pursuant to section 65DAA(1)(a) and 65DAA(1)(b) of the Act, whether it is in the children’s best interests for them to spend equal time between their parents and whether such an arrangement is reasonably practicable. Neither of the parties has applied for equal time in these proceedings. Accordingly, I must then move to consider whether it is in the children’s best interests to spend “substantial and significant time” with their parents and whether such time is reasonably practicable pursuant to section 65DAA(2)(c) and 65DAA(2)(d) of the Act.
Section 65DAA(3) of the Act defines substantial and significant time as:-
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The prospect of the children living in Town B affects the assessment of whether it is reasonably practicable for them to spend substantial and significant time with their Father. Although there would appear to be only a modest difference in the parties’ proposals (fortnightly or every third weekend) the practical reality is that if the children are not living in a location geographically proximate to their Father, his time with the children will change in character, such that it will be more difficult for him to be involved in their daily routines and attend the sorts of events which are of significance to them. Furthermore, the ability to have the children involved in events of significance to the Father will be further impaired, save for events that are accounted for in the orders I propose to make, such as Christmas and Father’s Day.
The additional factors pursuant to section 60CC(3)
The Act sets out the further matters to take into account pursuant to section 60CC(3). These factors provide guidance when considering the best interests of the children, including assessing the primary considerations.
Children’s views
During the interviews for the Family Report the children were interviewed separately and observed with both the Mother and their Father.
In respect of X, the Family Report Writer described him as:-
engaging and delightful young boy. He demonstrated perception and levels of understanding beyond his chronological age and answered questions to the best of his ability.
The Family Report Writer found him to be articulate in his answers and indicated that his wishes should therefore be considered.
Although the Family Report Writer recorded that X made it very clear where he wanted to live and who he wanted to spend time with, she failed to include that information in the Family Report. That is surprising given that she stated that X’s views needed to be considered.
Y was described as a “very precarious [sic] little girl who demonstrated a strong will to articulate what she wanted”, although Y’s views were also not articulated by the Family Report Writer.
The nature of the children’s relationships
During the Family Report interviews it was observed that X was relaxed with both of his parents and moved freely between them.
There is a suggestion in the Family Report that resonates, with an assertion that X is constrained in expressing his appreciation of his entire family to the Father.
Y was described as being more aligned with her Mother and when speaking of her Father said that while her Mother would facilitate her spending more time with the Father if requested, she was unsure how the Father would respond if she indicated she wanted to spend more time with the Mother. Overall, however, she appeared relaxed in her interactions with both parents and was also observed as moving freely between them.
In terms of Y, at paragraph 55, the Family Report Writer observed that:-
Y articulated to the writer much confusion as to who makes up her family and made reference that Ms F is Dad’s girlfriend, not sure if Ms N is family, not sure if P and Q are family but they are my brother and sister. Y did make reference that Ms R is her older sister and her child, T is her family.
The Family Report described the parental conflict which has been in existence pre and post-separation. At paragraph 59, the Family Report Writer said:-
… [the parental conflict was] often targeted at undermining the children’s relationship with each respective parent in proving or disproving who is right. This has weighed heavily upon the children’s modelling of what constitutes a healthy relationship.
Overall, it is observed that the children have a close relationship with each of their parents and significant others. They have real and enduring relationships with their Father and their paternal family, and appropriate relationships with their Mother, Ms N, and their siblings P and Q. The nature of the children’s relationship with their parents is marred by parental conflict, in particular an awareness, on the part of X at least, that his Father does not approve of his Mother’s relationship with Ms N.
On the basis of either proposal, the children will maintain a meaningful relationship with each of their parents and significant others, even though the nature of that relationship may change in the event that relocation occurs.
I do not have any concerns that the children would not maintain a meaningful relationship with their Father should they relocate to Town B, or stay in Town M.
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 to spend time with the children and to communicate with the children
There is no criticism that can be levelled at either of the parents in this regard.
The extent to which each of the parents have fulfilled or failed to fulfil his or her obligations to maintain the children
It is suggested by the Mother in her affidavit that the Father ceased paying child support between July 2013 and early 2015, which resulted in an accrued debt of approximately $5,800. The Father recommenced paying child support in June 2015 and there is no suggestion that he has failed to meet his child support obligations since. This issue has no bearing on the outcome of this case.
The likely effect of any changes in the children’s circumstances
There is some force in the argument by the Father that his relationship with the children will change if there is a relocation. Quite clearly, he will no longer be able to regularly collect the children from school (although he would try to do that occasionally) and he will no longer have the opportunity for ad hoc occasional time with the children, which is currently afforded by close geographical location.
The Father regards the change in the children’s circumstances as catastrophic and signals the demise of his relationship with them. In my view that is not so. The Father could continue to maintain a meaningful relationship with the children and continue to have regular and frequent time with them during school terms, school holidays and special days.
If I accede to the Father’s application, namely that the children do not relocate (and he accepts that they should continue to live with the Mother if she remains in the Town M area) there will be no change to the current circumstances.
The evidence of the Family Report Writer is that the children will cope with the proposed changes in their school and social networks. The children will continue to be able to spend regular time with their extended paternal family on either scenario and the children will remain in the primary care of their Mother on either scenario.
The practical difficulty and expense associated with face to face time and/or communication with the other parents
If the children remain in the Town M area there is no practical difficulty or expense associated with their ability of the Father to spend time with children.
If the children move to Town B there is a significant but not insurmountable distance put between the children’s primary residence and the Father’s residence. The travel time does present more practical difficulties and I agree with the Mother that it is not warranted that such travel take place on a fortnightly basis. However, the Mother was receptive to the Father spending fortnightly time with the children if he travels once per month, or alternatively spending once every three weeks with the Father in Town M. In that sense, I do not regard the travel as being too onerous. It was put by the Mother that she would use her best endeavours to ensure that the time the Father spent with the children coincided with the extended long weekends and I accept that evidence. I will also make an order for that to occur.
There is an issue with respect to whether or not Ms N can attend at changeovers. The Father is highly resistant to the Mother being able to use Ms N as a nominee to effect changeovers and to some extent that reflects the level of antipathy that he feels towards her. However, in my view it is appropriate that the Mother be able to rely on another person to effect changeover from time to time, but not in every instance. Nevertheless, these are final orders and there may be things which arise from time to time that cannot be anticipated, but which require the assistance of Ms N at the changeover regime. Ms N would be the natural and obvious choice if the Mother is unavailable. I make it clear that I would expect the Mother to effect the majority of the changeovers, however, she should be permitted to utilise a nominee from time to time and certainly Ms N can accompany her in the car if the Mother so chooses.
The Father should also be able to utilise a nominee to effect changeover if it is necessary.
Although there will be some financial cost associated with a greater distance, neither party raise that as being particularly significant in the proceedings.
The Father did raise the difficulty of travel if he is working away from Town M, which would increase the distance that he would be required to travel in order to effect changeover. He has however said that he has flexibility in his employment and again, I do not regard such issues as being insurmountable.
The capacity of the parents to meet the children’s needs
Each of the parties have an adequate capacity to meet the children’s needs and neither party takes issue with the other’s capacity to care for the children on a day-to-day basis.
Parental conflict has been raised as an issue which impacts on the parties’ capacity to promote the psychological and emotional health of the children, and I agree. However, these are issues that cannot be dealt with by these proceedings, but rather are issues that are best dealt with in counselling in order to try and have the parties reach a level of communication, understanding and tolerance in order to advance the children’s welfare.
The Father impresses as being highly committed to his children’s welfare and I am sure that he will devote his attention towards ensuring that the children maintain the meaningful relationship with him that they already enjoy. He is able to offer the children enjoyable extra-curricular activities and he said during his evidence that he would continue to do so.
The children’s maturity, sex, background and other characteristics I consider the maturity, sex, lifestyle, background, including a lifestyle, culture and tradition of the children and his parents
The Mother identifies as being of Aboriginal descent. However, this was not an issue of any significant focus during the course of the proceedings. Nonetheless, each of the proposals of the parties are appropriate to enhance the children’s cultural heritage in an appropriate way.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
I have dealt with this issue during the course of these reasons. Suffice to say that there are some issues with the Father’s attitude towards the Mother’s current relationship that require attention. I’m also concerned that the Father appears to have a very self-focused understanding of what the relocation issue entails. The Father asserts the effect of the relocation on him and also perceives it as punishment to him rather than a natural desire for the Mother to not only move on with her life, but also to choose where to live, how to conduct her relationship and how to assist her partner in advancing her career.
Equally, the Mother has been criticised for supporting her desire to promote Ms N’s needs ahead of her own. The Mother desires to get on with their life and there is a sense of a fresh start in the Town B area which may or may not be as child focused as it should be. However, I get no sense that the Mother desires a move to actively diminish the role of the Father or paternal family in the lives of the children. In that regard the bona fides of the Mother are not impugned.
Any family violence involving the children or any member of the children’s family and family violence orders
As I have previously indicated, although there are historical family violence issues pertaining to this family, neither party asserts that those issues should impact on the outcome of the proceedings.
Nevertheless, such issues are relevant in terms of an historical understanding of the parties’ relationship. On 23 July 2013 the Mother made an Application and Summons for an Intervention Order naming the Father as the respondent. The application was made by an employee of the public service. That application alleges verbal threats and abuse by the Father towards the Mother. The Application and Summons for Intervention Order clearly alleges volatile behaviour on the part of the Father, which was threatening and coercive in nature and happened in the vicinity – if not the actual presence – of the children.
On 23 July 2013 an Intervention order was made against the Father to last for a period of 12 months. The Intervention Order was made by consent and without any admissions by the Father as to the allegations made in the complaint.
Understandably, given the parties’ respective stance during the course of these proceedings, there was no attention in any great detail to these issues, save that the matter was raised in affidavit material. Although I cannot make any precise findings as to what was alleged to have occurred, it is fair to say that the on balance of probabilities the parties’ relationship has from time to time been conflictual which is characterised by some situational family violence.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
These will be final orders.
Children’s cases are never final in the sense that circumstances may change and arrangements may need to change as a result.
Ultimately, the issue of whether or not a change of circumstances has occurred will need to be considered by any judicial officer hearing the matter at that time.
Discussion
In general terms, there is agreement that the children should continue to live with their Mother, albeit that the Father’s agreement in that sense is contingent upon the children remaining in the Town M area.
Given that the Mother would not relocate her own residence in the event that the children are not permitted to live in Town B, it is largely unnecessary to consider competing residence applications. However, suffice to say that the children have been in the primary care of the Mother during the relationship and since separation. The parties styled their familial arrangements on the basis that the Mother was to provide the primary care for the children while the Father undertook the primary obligation to provide for the family financially. Neither party can be criticised for the way they have structured their life either during the relationship or following separation.
For all practical intents and purposes the Mother is the unchallenged custodial parent or primary carer of the children. In that sense, her wishes to fulfil and pursue her own desires impact on the children’s welfare. Those desires on her part cannot be raised above the best interests of the children.
It is suggested by both the Family Report Writer and the Father that the relationship between the Mother and Ms N has some inherent instability or untested nature about it. I disagree. Although the Mother and Ms N have maintained a form of separate residences, the evidence is quite clear that not only have they spent the majority of their time together but also that the children regard the wider maternal family as their own family. In that sense there is objective evidence that the Mother, Ms N and the four children function as a family unit, and that should be taken into account. Although the Family Report Writer suggested that the Mother and Ms N should “live together” for 6 months prior to relocation I can see no rational basis for that suggestion and cannot see what it would achieve. I accept and find that the Mother and Ms N’s relationship is committed and has endured for a number of years. I can see no evidence which would support a conclusion that the relationship is tentative or somehow unstable.
Accordingly, I am satisfied that the children should be in the care of the Mother, regardless of whether or not they reside in Town M or in the Town B area.
The Mother and Ms N clearly view Town B as the future direction of their lives. The Mother should not be penalised or disadvantaged by her appropriate position that she would remain in Town M in the event that the children were not permitted to move.
The proposed move to Town B would continue to provide the children with a regular, frequent and intimate relationship with their Father. There is no doubt that the relationship will change, and in some respects that relationship will not be as frequent, informal or ad hoc as it has been to date. Nevertheless, the Mother’s proposal to live with the children in Town B must be assessed in light of an ability on her part to provide the Father with at least weekend time with the children every three weeks, and if the Father is prepared to spend one weekend a month in the Town B area, then his time with the children can be accommodated fortnightly.
Furthermore, I have set out my findings in relation to my view that the Mother will actively promote and nurture the relationship between the children and their Father and will do so well beyond the Court orders.
A significant detraction from the Mother’s case is that she puts her reason to move on the basis of fulfilling Ms N’s career hopes and a desire to be closer to Ms N’s family. At first blush that would seem to have little to do with the welfare of the children. However, those desires must be seen in the light of an intact committed relationship in circumstances where the Mother has little family support in the Town M area. Further, it would be naive and unrealistic to discount the Mother’s desire to assist her life partner in the furtherance of her career in circumstances where the Mother has devoted much of her adult life to caring for children and has a working life seemingly of less significance as against the Father’s or Ms N’s career paths. Although the Mother has no particular onus to establish “compelling reasons” for her move, I am satisfied that the move is borne out of a genuine desire to enhance her life and the circumstances of her family’s life as a family unit.
On the Father’s case, however, the matters that he puts in opposition to the children living in Town B are valid and understandable in the circumstances. In observing the Father give evidence I noted almost a sense of bewilderment in terms of how it could be that the children would relocate in circumstances where they had lived their entire lives in the Town M area and have both family and social connections there. Those matters are not insignificant and I have considered them carefully.
Ultimately, I am persuaded that whilst it is not the optimal result for the children when weighing all matters in the balance, it is in their overall best interest that they be permitted to live in the Town B area with their Mother.
Conclusion
The consideration in this matter is finely balanced and there are factors which favour each of the parties’ proposals. On the Mother’s side, it cannot be said that the children will not continue to have a meaningful and regular relationship with their Father. On the Father’s side, there can be little doubt that the character of the children’s relationship with him will change and he will be less able to have the sort of ad hoc contact with the children that they have enjoyed to date. On the balance, however, I am satisfied that even with a relocation to Town B the children’s meaningful relationship with the Father will endure, and it would be unrealistic and unreasonable to restrict the Mother’s movement of her residential arrangements to the Town B, area in the circumstances. I am satisfied that the children’s best interests, when considered in relation to the normal and natural desire of the Mother to fulfil her life with her family, warrants that children to be permitted to move with the Mother.
There are numerous matters upon which the parties are agreed. They agree for instance that the relocation should not occur until Ms N is offered a position in the Town B area and there should be appropriate notice afforded to the Father.
They also agreed that the Father should have the option of fortnightly time should he be able to do so. I will incorporate such a circumstance into the orders.
The final matter for consideration is whether or not there should be daily telephone time with the children. The Mother said that the children regarded that telephone contact as intrusive and proposed that the telephone communication occur on two occasions per week. The Father says that it has been his habit to speak with the children every day and he would like that to continue, particularly in circumstances where there is a possibility that the children are to relocate. On balance, I am not satisfied that twice weekly communication between the Father and the children is sufficient, particularly in circumstances where they will no longer be living in a close geographic location. I am, however, cognisant that telephone time can impact on the children’s day-to-day lives. On balance, in my view it is in the children’s best interest that they speak to the parent with whom they are not living or spending time with every second day unless they express a desire to speak every day, which should be facilitated by the parent in whose care they are at any given time.
For the foregoing reasons I regard the orders made in the commencement of these reasons, as being in the best interests of X and Y.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 1 August 2016
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