Tacchi and Serio
[2014] FCCA 81
•22 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TACCHI & SERIO | [2014] FCCA 81 |
| Catchwords: FAMILY LAW – Parenting – application for final parenting orders – wife seeks to relocate interstate – husband opposes the wife’s relocation. |
| Legislation: Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Taylor v Barker (2007) 37 Fam FLR 461 Cowley & Mendoza [2010] FamCA 597 MRR v GR [2010] HCA 4 Heath v Hemming (No.2) [2011] FamCA 749 Sigley & Evor (2011) 44 Fam LR 439 |
| Applicant: | MS TACCHI |
| Respondent: | MR SERIO |
| File Number: | MLC 3446 of 2013 |
| Judgment of: | Judge Bender |
| Hearing dates: | 26 & 27 November 2013 |
| Date of Last Submission: | 27 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 22 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | O'Farrell Robertson & McMahon |
| Counsel for the Respondent: | Mr A. Combes |
| Solicitors for the Respondent: | J A Middlemis |
ORDERS
The parties have equal shared parental responsibility for the children
[X] born [in] 2008 (“[X]”), [Y] born [in] 2008 (“[Y]”) and [Z] born [in] 2009 (“[Z]”).
[X], [Y] and [Z] live with the wife.
From 15 January 2015, the wife be permitted to relocate with [X], [Y] and [Z] to [G], New South Wales.
Pending relocation, the husband spend time and communicate with [X], [Y] and [Z] as follows:
(a)
the first two weekends in each three week cycle from after school or 3.30pm if not a school day to 6.30pm Sunday commencing
24 January 2014;
(b)from the first weekend of second term 2014, for the first two weekends in each three week cycle from after school or 3.30pm to before school Monday or before school Tuesday if Monday is a non-school day;
(c)from after school to 6.30pm each Monday and Tuesday;
(d)for half of the school holidays as agreed between the parties;
(e)on [X], [Y], [Z] and the husband’s birthdays, Father’s Day and Christmas Day as agreed between the parties; and
(f)as otherwise agreed between the parties.
[X], [Y] and [Z]’s time with the husband pursuant to orders 4(a) (b) and (c) herein be suspended during the school holidays and recommence on the basis that the school holidays has not intervened.
In the event [X], [Y] and [Z] are spending time with the husband pursuant to order 6 herein on either [X], [Y] or [Z] or the wife’s birthday’s or Mother’s Day, they shall spend time with the wife as agreed between the parties.
Upon the wife, [X], [Y] and [Z] relocating to [G], [X], [Y] and [Z] shall spend time with the husband as follows:
(a)for half each of the New South Wales school term holiday period save that for the June/July school term holidays such time be extended to 10 days at such times as agreed between the parties and such time to take place in Bendigo or such other location as nominated by the husband;
(b)for the first half of the New South Wales Christmas school holidays in 2015/2016 and each alternate year thereafter from the first day of such holidays to the middle day, such time to take place in Bendigo or such other location as nominated by the husband;
(c)for the second half of the 2016/2017 New South Wales Christmas school holidays and each alternate year thereafter from 7 days prior to the middle day until 7 days prior to the commencement of the school year, such time to take place in Bendigo or such other location as nominated by the husband;
(d)such further time during school term weekends in the [G] area upon the husband giving the wife least 14 days’ notice in writing of his intention to exercise such time and the details of his accommodation;
(e)during each school term as follows:
(i)for two weekends from 8.30pm Friday to 3.00pm Sunday or 12 noon Monday if it is a long weekend with changeover to take place at Melbourne Airport, such weekends to be as agreed between the parties and failing agreement as nominated by the husband no less than 21 days prior to the nominated weekend with there to be at least 2 weeks between weekend visits;
(ii)subject to order 9 herein, on one additional weekend as nominated by the husband from 8.30pm Friday to 3.00pm Sunday with changeover to take place at Melbourne Airport on such weekend as agreed between the parties and failing agreement as nominated by the husband no less than 21 days prior to the nominated weekend with there to be no less than 2 weeks between weekend visits; and
(iii)in the event of the wife travelling to the Bendigo area during the school term (save for the husband’s nominated weekends) she shall provide advanced notice in writing to the husband and propose [X], [Y] and [Z] spend time with the husband during her stay in the Bendigo area;
(f)that the husband be permitted to communicate with [X], [Y] and [Z] by telephone or Skype no less than twice weekly at times to be agreed and the wife shall facilitate such communication.
For the purposes of the time [X], [Y] and [Z] spend with the husband pursuant to orders 7 (a), (b), (c) and (e)(i) herein the wife shall meet the cost of [X], [Y] and [Z]’s airfares to and from Melbourne.
For the purposes of [X], [Y] and [Z] spending time with the husband pursuant to order 7(e)(ii) herein, the husband shall meet the cost of [X], [Y], [Z] and the wife’s airfares to and from Melbourne.
In the event of the husband travelling to the [G] area to spend time with [X], [Y] and [Z] he be at liberty to apply to offset such travelling costs against his child support liability.
The wife shall:
(a)keep the husband advised at all time of the current residential address and telephone number for [X], [Y] and [Z];
(b)advise the husband immediately in the event that [X], [Y] and [Z] suffers any serious illness or injury;
(c)authorise any medical practitioner upon whom [X], [Y] and [Z] may attend from time to time to communicate with the husband in respect of [X], [Y] and [Z]’s progress, medical condition and/or requirements; and
(d)authorise all schools, kindergartens and child care centres which [X], [Y] and [Z] may attend to:
(i)provide the husband at expense of the husband copies of all reports, notices and photographs in relation to [X], [Y] and [Z];
(ii)communicate with the husband either by telephone, in writing or by personal attendance in respect of [X], [Y] and [Z]’s progress; and
(iii)subject to any school/kindergarten policy allow the husband to attend all functions to which all parents are normally invited if practicable.
The husband shall:
(a)keep the wife advised at all times of his current residential address and telephone number for [X] ,[Y] and [Z] when spending time with him; and
(b)advise the wife immediately in the event any of [X], [Y] and [Z] suffers any serious illness or injury and authorise any treating medical practitioner to speak with the wife.
IT IS NOTED that publication of this judgment under the pseudonym Tacchi & Serio is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BENDIGO |
MLC 3446 of 2013
| MS TACCHI |
Applicant
And
| MR SERIO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the wife’s application to relocate with the parties’ three children, twin girls born [in] 2008 [X] (“[X]”) and [Y] (“[Y]”) aged 6 and son [Z] born [in] 2009 (“[Z]”) aged 3 years from Bendigo to [G] in New South Wales.
The husband opposes the relocation of [X], [Y] and [Z] to [G] and seeks they remain living in the Bendigo region and that they live with each of the parties on a week about basis.
Background
The wife was born [in] 1986 and is 27 years of age. The wife is a [occupation omitted] but is currently unemployed and is engaged in home duties. The wife is in a committed relationship with Mr C who lives in [G] where he is employed in his family’s [omitted] business.
The husband was born [in] 1981 and is aged 31 years. He is in full time employment as an [omitted]. He currently lives with his parents. He has re-partnered. His new partner Ms S has two children [A] aged 4 and [B] aged 18 months who live with her and spend time with their father. Whilst the husband and Ms S do not currently co-habit, they have plans to do so once these proceedings are finalised.
The parties commenced cohabitation in April 2004, married [omitted] 2005 and separated on 21 August 2012.
At separation the parties put in place arrangements whereby [X], [Y] and [Z] lived with the wife and spent time with the father each weekend from Friday evening to Sunday morning and for two to three hours each Monday and Wednesday evening.
To the parties credit, they have both worked very hard to minimise the impact on [X], [Y] and [Z] of their separation and as a result all three children have excellent relationships with the parties and their extended families. In short, they are thriving.
The wife first met Mr C when she was 14 years. Their families met and became friends on annual holidays. The wife and Mr C did not have contact with each other for many years until October 2012 when Mr C contacted the wife and they commenced their relationship.
Mr C has spent time in Bendigo with the wife, [X], [Y] and [Z], as they have with him in [G].
Mr C and his brother are employed in the [omitted] business owned by Mr C Senior and there is an expectation that the brothers will take over the running of the business in the next 5 years. As such, Mr C is tied to [G].
The wife seeks to relocate to [G] with [X], [Y] and [Z] to start a life with Mr C.
The wife has lived in the Bendigo region all her life and her extended family live in the Bendigo area.
The husband has also lived all his life in the Bendigo region and his extended family are also in and around the Bendigo region.
The Evidence
The Wife’s Evidence
In support of her application the wife relies on her affidavits sworn
20 April 2013 and 29 October 2013. The wife also relies on the following affidavits:
a)Mr C sworn 16 May 2013;
b)Mr C Senior sworn 12 July 2013;
c)Mrs C sworn 12 July 2013; an
d)Mrs T sworn 24 October 2013.
The wife is seeking to relocate with [X], [Y] and [Z] to [G] New South Wales to live with her new partner Mr C.
The wife proposes that the parties have equal shared parental responsibility for [X], [Y] and [Z], that they live with her in [G] and that they spend time with the husband for two weekends during each school term from 8.30pm Friday to 3.00pm Sunday with changeover taking place in Melbourne Airport, for half of the first and third term holidays, for ten days in the second term holidays and for half of the long summer vacation and otherwise by telephone or Skype on a weekly basis.
It is the wife’s proposal that she will be financially responsible for she and [X], [Y] and [Z] travelling to Bendigo to spend time with the husband in accordance with her proposal.
The wife is also agreeable to the husband spending an additional weekend with [X], [Y] and [Z] in the Bendigo region at his expense as well as spending time with [X], [Y] and [Z] in the [G] region upon him giving 14 days’ notice of his intention to travel to that area.
In the event the wife is not permitted to relocate to [G] with [X], [Y] and [Z], it is her proposal that [X], [Y] and [Z] continue to spend the same amount of time with the husband as they do under the existing arrangements, albeit she seeks an adjustment to those arrangements such that she would be able to spend an entire weekend with [X], [Y] and [Z] without a reduction in the overall time [X], [Y] and [Z] currently spend with the husband.
The wife is opposed to the husband’s proposal that [X], [Y] and [Z] live week about with each of their parents on the basis that she has been and continues to be [X], [Y] and [Z]’s primary carer and that [Z] in particular, being only 3 years of age, would not manage spending an entire week away from her care.
The wife happily and openly acknowledges [X], [Y] and [Z] have a close and loving relationship with the husband and that he is a loving, caring and devoted father.
It is the wife’s evidence that she knows that [X], [Y] and [Z] will miss their father in the event that they are permitted to relocate but she believes both she and the husband will be committed to ensuring that [X], [Y] and [Z]’s relationship with the husband will be maintained. Further it is her evidence that as [X], [Y] and [Z] will spend regular time with the father in accordance with her proposal as well as regular telephone and Skype communication, their relationship with the husband will be maintained and nurtured and that the impact of the relocation on [X], [Y] and [Z] and their relationship with the husband will be minimised.
It is the wife’s evidence that she and Mr C are in a committed relationship and she is desirous of being able to move on with her life and be afforded the opportunity to share her future with her new partner.
It is the wife’s evidence that she has developed strong bonds in the [G] region with Mr C and his family and friends.
It is the wife’s evidence that she has made enquiries in relation to kindergarten’s, schools and medical facilities for [X], [Y] and [Z] in [G], the details of which she has provided to the husband.
It is the wife’s evidence that she is a qualified [omitted] but that in recent times she has been unable to obtain employment in the Bendigo region despite making applications for four part-time positions in the last 12 months.
It is the wife’s evidence that she believes that she will be able to obtain employment in [G] as a [omitted] and that long term she will be part of the husband’s business when he and his brother take over his father’s [omitted] enterprises in that area.
In relation to being responsible for the costs of she, [X], [Y] and [Z] travelling to Bendigo on at least 12 occasions each year in accordance with her proposals, it is the wife’s evidence that she would be reliant on Mr C to assist her in paying those costs but that with the use of Frequent Flyer points, early booking and the Jet Star program, the costs of that travel can be minimised. She did concede however that based on information provided to the Court, the cost of that travel would be approximately $10,000.00 to $15,000.00 each year.
As noted previously, in the event that the wife is not permitted to relocate to [G], she opposes any orders that [X], [Y] and [Z] live week about with each of the parties. It is the wife’s evidence that [Z] in particular is not old enough to manage a week away from her primary care as he is very much “a mummy’s boy” and would fret and would become most distressed if he did not see her for a week.
In the event the wife is required to remain in Bendigo, she is not opposed to the parties considering a move towards a shared care arrangement when [Z] had completed his first year of primary schooling but suggests this would be something to be considered at that time and not earlier.
Mr C
Mr C is the wife’s partner. Mr C swore an affidavit in these proceedings on the 16 May 2013 and gave viva voce evidence at the final hearing of this matter.
It is Mr C’s evidence that he supports the wife’s application to be able to move to [G] so that they can start their life together.
Mr C is employed in his father’s [omitted] business in [G] having moved there 3 years ago with his family when his father purchased a [omitted] business in that region.
It is Mr C’s evidence that he has purchased his own home in [G] which has three bedrooms and all modern facilities.
It is Mr C’s evidence that he has spent time with [X], [Y] and [Z] both in [G] and in Bendigo and that they are developing a positive relationship.
It is Mr C’s evidence that it is the expectation of himself and his family that in the next five years he and his brother will take over the running and management of the [omitted] business from his father when he retires. For this reasons it is not possible for Mr C to move to Bendigo to live with the wife.
It is Mr C’s evidence that he will be able to afford to fund the wife and [X], [Y] and [Z] travelling to Bendigo to spend time with the husband 12 times a year. It is Mr C’s evidence that he currently earns $67,000.00 per annum but that he is able to earn up to $2,000.00 on a weekend by [omitted] on his or other parties’ behalf utilising the [business] facilities.
Mrs T
Mrs T is the maternal grandmother. Mrs T swore an affidavit on the 24 October 2013 in support of the wife’s application and also gave viva voce evidence at the final hearing.
The maternal grandmother confirmed that the family has always lived in Bendigo.
It is the maternal grandmother’s evidence that they are a close family and that she has had considerable involvement in the lives of the wife and of [X], [Y] and [Z] since birth.
It is the maternal grandmothers evidence that she will have of course miss the wife and her grandchildren if they were to move to [G] but she is fully supportive of the wife’s application as she realises that it is important for her daughter to be afforded the opportunity of happiness in her new relationship.
It is the maternal grandmother’s evidence that the husband is a caring and loving father and confirmed his close relationship with [X], [Y] and [Z].
It is the maternal grandmother’s evidence that she would anticipate that the wife will travel with [X], [Y] and [Z] to Bendigo when they are spending time with the father and that she will be able to maintain her involvement [X], [Y] and [Z]’s lives when they visit the Bendigo region. The maternal grandmother will also maintain regular contact through telephone and Skype and she and her husband will also take an opportunity to holiday in the [G] region in order to be able to spend time with the family in that region.
Mr C Senior
Mr C Senior is Mr C’s father. Mr C swore an affidavit on behalf of the wife in these proceedings on 12 July 2013 and also gave viva voce evidence at the final hearing of this matter.
It is Mr C Senior’s evidence that he supports the wife in her application to move to [G] to pursue her relationship with his son and that he and his family have welcomed the wife, [X], [Y] and [Z] into their extended family.
Mr C Senior confirmed that he owns the [omitted] business in [G] and that in the next three to five years it is his expectation that the business will be taken over by his two sons.
Mr C Senior also confirmed that Mr C is able to use the [business] to [omitted] on a weekend to earn extra money and that as recently as the Saturday prior to the final hearing Mr C had been able to earn $800.00 by working in the [business] on Saturday morning.
Mrs C
Mrs C is Mr C’s mother. She swore an affidavit in support of the wife in these proceedings on the 12 July 2013 and gave brief viva voce evidence at the final hearing of this matter.
Mrs C also supports the wife’s application to be able to move to [G] with [X], [Y] and [Z]. It is her evidence that she has enjoyed spending time with the wife, [X], [Y] and [Z] when they visit [G] and that the wife and [X], [Y] and [Z] have been welcomed into to the [C] extended family.
The Husband’s Evidence
The husband relies on his affidavits sworn 14 June 2013 and
14 November 2013. The husband also relies on the following affidavits:
a)Mr B filed 13 November 2013;
b)Mr Serio sworn 14 November 2013;
c)Ms I filed 15 November 2013; and
d)Ms S sworn 21 November 2013.
The paternal grandparents, Mr Serio and Ms I were not required for cross examination.
The Husband
The husband opposes the wife’s application to relocate with [X], [Y] and [Z] to [G].
It is the husband’s evidence that he, [X], [Y] and [Z] have a very close loving relationship. The husband and the wife have worked very hard since separation to ensure his relationship with [X], [Y] and [Z] has flourished by putting in place arrangements, that have enabled [X], [Y] and [Z] to spend time with him on no less than four days each week.
It is the husband’s evidence that if [X], [Y] and [Z] were permitted to relocate to [G] with the wife, this relationship will be diminished because of the geographical distance between Bendigo and [G] and the reality that [X], [Y] and [Z] could only spend limited time with him.
It is the husband’s evidence, not disputed in any way by the wife, that [X] and [Y] who started school in 2012 have settled in very well in their school and are making more than satisfactory progress.
It is the husband’s evidence that in addition to the very close relationship that [Y], [X] and [Z] have with him, they also have a very close relationship with his extended paternal family, being the paternal grandparents with whom the husband currently lives as well as his siblings and nephews and nieces.
It is the husband’s evidence that in November 2012 he commenced a relationship with Ms S. The husband and Ms S do not currently live with each other but intend to do so once these proceedings have been finalised.
It is the husband’s evidence that Ms S has two young children [A] aged 4 years and [B] aged two years who live with her and spend time with their father.
It is the husband’s evidence that when spending time with him on weekends and Mondays, [Y], [X] and [Z] also spend time with Ms S and her children and that they have formed positive relationships with her and her children.
It is the husband’s proposal that in the event the wife and [X], [Y] and [Z] remain in the Bendigo region, orders be made for [X], [Y] and [Z] to live with each of the parents on a week about basis and that they spend time with the parent they are not living with each Tuesday from after school until 7pm to ensure that there is not a full week where they do not see the other parent.
It is the husband’s evidence that he believes that given the very close and loving relationship that [X], [Y] and [Z] have with each of the parents and the cooperative parenting relationship he and the wife have established since their separation, such an arrangement would be in [X], [Y] and [Z]’s best interests and enable them to maintain the positive relationships they have with both their parents.
It is the husband’s evidence that his work hours are flexible and that in the event a week about arrangement was put into place, he would be able to reduce his hours of work whilst [X], [Y] and [Z] are in his care to enable him to drop them off and pick them up from school and kindergarten. It is the husband’s evidence that he is also able to work from home if necessary.
The husband spoke positively of the wife as a parent. This is perhaps best illustrated by his response to a question put to him in cross examination as to what additional enquiries he had made of the school and kindergarten the wife had suggested would be appropriate for [X], [Y] and [Z] in the event they were to relocate to [G]. It is the husband’s evidence that he does not believe the wife would put [X], [Y] and [Z] in a school or kindergarten that was not appropriate and that he trusted her opinion. In those circumstances the husband had not seen the need to make further enquiries other than to make a quick internet search of the school and kindergarten recommended by the wife.
It is the husband’s evidence that he has lived all his life in Bendigo, that his family and friend live in the region, that his is a specialised employment field and he would have very limited opportunities in [G]. In these circumstances the husband would be most reluctant to consider moving to [G] in the event the wife, [X], [Y] and [Z] were permitted to relocate to that area.
Mr B
Mr B is the husband’s manager. Mr B swore an affidavit in support of the husband on the 13 November 2013 and also gave viva voce evidence at the final hearing.
It is Mr B’s evidence that the husband has some flexibility in relation to his working hours and that since separation the husband has been able to leave work early in order to be able to collect [X], [Y] and [Z] to accommodate the arrangements the parties currently have in place for their care.
It is Mr B’s evidence that as long as projects are completed, the husband is not required to “clock on” and “clock off” and if necessary the husband is able to work from home.
Ms S
Ms S is the husband’s current partner. Ms S swore an affidavit in support of the husband in these proceedings on the 21 November 2013 and also gave viva voce evidence at the final hearing.
It is Ms S evidence that she and the husband have been in a relationship since November 2012 and that they are intending to move in with each other once these proceedings have been finalised.
It is Ms S’s evidence that she currently runs her own [omitted] business in [omitted] where she and her two children live in rented accommodation.
It is Ms S evidence that when [X], [Y] and [Z] are spending time with the husband each weekend and on Monday evenings she and her children are also with the husband. She described a positive relationship between herself, her children and [X], [Y] and [Z].
It is Ms S’s evidence that whilst no decisions have been made in relation to where she and the husband will live together, their preliminary enquiries have been focussed around Bendigo to ensure that [X] and [Y] will be able to continue at their current school.
Ms J
Ms J is a Regulation 7 Family Consultant with the Federal Circuit Court of Australia. Ms J prepared a Family Report in this matter dated 22 July 2013. Ms J also gave viva voce evidence at the final hearing of this matter.
In paragraph 65 of her Family Report, Ms J states as follows:
65.From my observations, [X], [Y] and [Z] have warm and close relationships with Ms Tacchi and Mr Serio and they appear to be in the process of developing warm and accepting relationships with Mr C and Ms S. [X], [Y] and [Z] all seemed to feel secure and trusting of Ms Tacchi and Mr Serio. [X], [Y] and [Z] all appear to have warm and close sibling relationships. No concerns arose from the observation sessions about the nature of these relationships.
In paragraph 71 of her Family Report Ms S states as follows:
71.The issue of relocation is vexing given the quality of the relationships [X], [Y] and [Z] have with Mr Serio and given the quality of the parenting Mr Serio provides for them. If relocation is permitted then clearly [X], [Y] and [Z] would spend a great deal less time with Mr Serio than they currently enjoy.
Further to paragraph 71 of her Family Report, Ms J states as follows:
It is my view that the strength of the relationships [X], [Y] and [Z] have developed with Mr Serio to the present time means that these relationships should withstand the distance between them but that does not mean it would be emotionally easy for the children living so far away from Mr Serio and having their time with him greatly reduced. Ms Tacchi has demonstrated to date that she encourages, facilitates and supports the children’s relationships with Mr Serio so it is doubtful that she would change this.
In paragraph 72 of her Family Report, Ms J states as follows:
72.Relocation also means for the children that Mr Serio would no longer have the opportunity to parent the children as he has been able to all of their lives. It would mean that he and they lose the benefits of spending time with him each week. These benefits include all that he provides for the children in a parenting capacity including teaching the children about his values, principles about life and all the different aspects that children learn from their male parent and in particular what they would learn from Mr Serio who takes his role as a parent very seriously and responsibly. To date, Mr Serio has been providing the children with a solid foundation about life that the children will carry with them through their lives. Mr Serio’s work in this capacity as a parent will diminish as the work as a parent cannot continue to the extent it has to date if the children live so far away. In addition, the children would not be able to enjoy the regular and ongoing contact with their maternal and paternal grandparents and extended family.
In paragraph 72 of her Family Report, Ms J states as follows:
72.If relocation takes place then the three children would experience major changes in their lives including the loss of seeing Mr Serio so frequently. This would initially be experienced by the children as loss and grief once they realise they were unable to spend regular time with Mr Serio. How the children then emotionally deal with such major change would depend on how Ms Tacchi, Mr Serio and Mr C deal with this directly with the children.
Mr Serio would be greatly affected and may have some difficulty in coming to terms with this as he has made his children his priority in life.
In paragraph 74 of her Family Report, Ms J states as follows:
74.It is my view, given the ages of the children and in particular [Z] that if relocation is permitted then it would be best in at least another six months (January 2014) to allow for [Z] to consolidate his relationship with Mr Serio and to allow [X] and [Y] to finish their school year at the current school. If relocation is permitted then [X], [Y] and [Z] should spend at the least half of all school holidays with Mr Serio and any additional times that would be financially possible.
In paragraph 76 Ms J sets out the following conclusion:
76.On balance, it is my view that overall [X], [Y] and [Z] would benefit more from life if they were able to remain living close to Mr Serio but this would result in a great deal of difficulty for
Ms Tacchi having a long-distance relationship and the possible effects on her in regard to her parenting. It is my view that
Ms Tacchi and Mr Serio should provide to the Court information as to whether they could financially afford the costs of travel for [X], [Y] and [Z] to spend time with Mr Serio each school holidays.
In paragraphs 77 to 80 of her Report, Ms J sets out her recommendations in relation to this matter as follows:
77.It is recommended that Ms Tacchi and Mr C share parental responsibilities for [X], [Y] and [Z].
78.It is recommended at this time that [X], [Y] and [Z] live with Ms Tacchi.
79.It is recommended under the circumstances of relocation being permitted that [X], [Y] and [Z] spend time with Mr Serio at least half of all school holidays and any other times as possible as well as weekly communication by phone and/or Skype or e-mail.
80.It is recommended under the circumstances of relocation not being permitted that [X], [Y] and [Z] spend time with
Mr Serio on each weekend from after school Friday to 9.30am Sunday as well as each Monday and Wednesday evenings; half of all school holidays and times on the special days through the year.
In cross examination Counsel for the wife outlined to Ms J the wife’s proposal in relation to the time that [X], [Y] and [Z] would spend with the father in the event she is permitted to relocate. Ms J was asked whether such time would enable the children to maintain a meaningful relationship with the husband.
It is Ms J’s evidence as follows:
If you are looking at it in a cold a clinical sense, given the very strong relationships the children have built with their father and providing that there is ongoing communication – that I would say at least weekly – providing that they were given every encouragement their relationship with their father – it was facilitated for them to maintain those relationships, - the relationships themselves should be sustained. However, that is looking at it in a cold and clinical way.
When questioned in relation to the wife’s commitment to [X], [Y] and [Z] maintaining a meaningful relationship with the husband it is Ms J’s evidence that given the history of how the parties have interacted since separation, she believes that the wife would maintain their relationship with the husband and would place [X], [Y] and [Z]’s relationship with the husband as a priority.
Ms J was asked if the Court was persuaded to allow relocation, whether it would be in [X], [Y] and [Z]’s best interests that for the relocation to be delayed. It is Ms J’s evidence that if relocation is going to happen then her preference would be for it to be delayed given the very young ages of [X], [Y] and [Z].
When questioned as to what that delay should be, it is Ms J’s evidence as follows:
I know at the time (of preparation of the report) I said that at least 6 months but I would look at the next 12 months and that provides, particularly [Z], with much more opportunity to be seeing his father, Mr Serio on a very regular basis and being – the opportunity to learn as much as he can from him as regularly as he can through that period.
In relation to the husband’s proposal that in the event relocation is not allowed, [X], [Y] and [Z] live week about with each of the parties, it is Ms J’s viva voce evidence that she does not support such an arrangement for [X], [Y] and [Z] and particularly [Z] at this time.
It is Ms J’s evidence that even though the parties have been able to work very co-operatively with each other post separation and have the kind of co-operative parenting relationship that would facilitate a shared care arrangement, [X], [Y] and [Z]’s very young ages and particularly [Z]’s young age, are such that she would not recommend a shared care regime until [Z] has at least completed his first year of primary school.
It is Ms J’s evidence that there should be some consideration given to a “re-jigging” of the current arrangements so that [X], [Y] and [Z] are given an opportunity to spend an entire weekend with the wife. She suggested that perhaps [X], [Y] and [Z] spending two weekends out of the three with the father would be preferable. She was keen to emphasise that the amount of time that [X], [Y] and [Z] currently spend with the husband should not be reduced.
At the conclusion of her viva voce evidence, Ms J was asked whether she supported an order that enabled [X], [Y] and [Z] to relocate [G]. It is Ms J’s evidence as follows:
Overall, the children would benefit more from… long term if they were able to remain living close to Mr Serio. My preference would be that they remain in Bendigo and that… Mr C and Ms Tacchi do have a long term relationship. If it is a solid relationship then, eventually, in a few years’ time they may be able to work out how they could live together, but it would need Mr C to be doing a lot of the travelling to Bendigo.
And then I guess Ms Tacchi could do some travelling when the children were with their father, so that – that to my mind, would be the ideal for the children.
The Legal Approach
As noted in this judgment, the primary application in this matter is that of the wife seeking to relocate with the parties’ three children
[X], [Y] and [Z] from Bendigo to [G].
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002
) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[1]
[1] At paragraph 31.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Presumption of Equal Shared Responsibility
In this matter both parties propose that they have equal shared parental responsibility for [X], [Y] and [Z].
Section 61DA of the Act provides that the Court must apply a presumption that it in the best interests of the child for the child’s parents to have equal shared responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In those matters where there is an issue as to whether an order should be made for equal shared responsibility, it is often the approach of the Court to fully consider all aspects of the best interests of the child before making a determination on the question of parental responsibility.
However, in this matter there can be no question that the orders sought by the parties that they have equal shared parental responsibility is in [X], [Y] and [Z]’s best interests. This is supported by the report writer, Ms J.
The parties have demonstrated a clear capacity to work together in making joint decisions in the best interests of [X], [Y] and [Z]. I am satisfied they will continue to do so into the future.
Accordingly an order will be made for the parties to have equal shared parental responsibility for [X], [Y] and [Z].
Consideration of equal time or substantial and significant time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent. Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
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.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 15:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.
The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”Thus, the Court must consider whether it is in the child’s best interests and also whether it is reasonably practicable for the child to spend equal or significant and substantial time with their parents.
In the event the wife is not permitted to relocate with [X], [Y] and [Z] to [G], the father is proposing they spend equal time with each of their parents.
This order is opposed by the wife. She argues that as she is and will continue to be [X], [Y] and [Z]’s primary carer and given their young ages, in particular [Z]’s, such an order cannot be seen be in [X], [Y] and [Z]’s best interests at this time.
In the event that a decision is made that enables the wife to relocate to [G] with [X], [Y] and [Z], it will not be practicable for them to spend either equal or significant and substantial time with the husband given the distance between Bendigo and [G].
Best Interests of the Child
When determining what is in the best interests of the child, the court must consider the matters set out in Section 60CC(2) and
Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF 99 199 CLR 160, U & U 202211 CLR 238), is in the children’s best interests.
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
That [X], [Y] and [Z] have a close loving and meaningful relationship with both their parents is without doubt in this matter.
To their credit both parties have worked very hard since separation to ensure that [X], [Y] and [Z] have been afforded the opportunity to continue their relationships with both their parents and in an environment where they have been shielded from the emotional fall out which often ensues following separation.
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
It is the evidence of Ms J that if relocation was allowed in this matter, the strength of the relationship that exists between [X], [Y] and [Z] and the husband is such that they will continue to have a meaningful relationship with each other, albeit that relationship must change given the distance between [G] and Bendigo and the resultant reduction in the frequency with which [X], [Y] and [Z] can spend time with the father.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
This is not a factor relevant to this matter.
There is absolutely no risk that [X], [Y] and [Z] are at risk of physical or psychological in the care of either of their parents or that they would be exposed to neglect, abuse or family violence.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn were applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Neither of the parties have raised with [X], [Y] and [Z] the possibility of them moving to [G].
It is the evidence of the wife that given the [X], [Y] and [Z]’s very young ages, they would not understand the concept that they ‘may’ move to [G]. She formed the view that to raise the possibility of relocation with [X], [Y] and [Z] prior to there being a decision that such move could take place would only cause them confusion and distress. This, in my view, was a sensible and commendable decision by the wife.
Accordingly the Court has no evidence in relation to whether [X], [Y] and [Z] have any views in relation to the proposed relocation. Given [X], [Y] and [Z]’s very young ages, the Court would not have placed any great weight on those views if they had been expressed.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).
As previously set out in this judgment [X], [Y] and [Z] have a very close and loving relationship with both of their parents.
I am satisfied that the wife is the primary carer of [X], [Y] and [Z] and it is with her that they have their primary attachments. The wife is the primary source of nurture and comfort to them.
Given the high level of involvement that the husband has in the care of [X], [Y] and [Z], they also have a very close and loving relationship with him and he is a very significant attachment figure to them.
I am also satisfied that [X], [Y] and [Z] have positive relationships with both of their parents’ new partners which are continuing to develop as those relationships strengthen and grow.
Both the maternal and paternal extended families live in the Bendigo region and prior to, and post separation [X], [Y] and [Z] have spent considerable time with their extended maternal and paternal families and have close and loving relationships with them.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
As noted previously in this judgment, the parties in these proceedings have worked cooperatively post separation to put in place arrangements so that [X], [Y] and [Z] have been able to maintain close and loving relationships with both their parents. The parties have worked together to minimise the emotional impact on [X], [Y] and [Z] of the separation and it is apparent from the parties evidence that they have both made the best interests and welfare of their children their priority.
It is also apparent from the parties evidence that they have been able to work cooperatively putting in place arrangement for [X], [Y] and [Z], including decisions as to where they attend school, any necessary medical treatment and the care arrangements for [X], [Y] and [Z]. Both parties gave evidence of being flexible in relation to adjusting the arrangements for [X], [Y] and [Z] to accommodate each parents needs including the husband caring for [X], [Y] and [Z] whilst the wife was in [G] and the wife caring for [X], [Y] and [Z] whilst the husband was engaging in his sporting interests including his interests in running marathons.
I am satisfied that both parties will continue to work with each other in the best interests of [X], [Y] and [Z] into the future.
Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
Both parties fulfil their obligations to maintain [X], [Y] and [Z] appropriately.
Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the event the wife is permitted to relocate with [X], [Y] and [Z] to [G], there will be a significant impact on their relationship with the husband.
Currently [X], [Y] and [Z] see their father at least four times a week and as the husband currently lives with his parents, they also see their paternal grandparents with the same frequency.
It is the husband’s evidence that on at least three of the occasions that [X], [Y] and [Z] are with him they also spend time with his partner
Ms S and her two young children [A] and [B].
It is the wife’s evidence that she has a close and loving relationship with her extended family in Bendigo and that [X], [Y] and [Z] often spend time with the maternal extended family.
Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
It is the wife’s proposal that if they are permitted to relocate to [G], she would, with the assistance of Mr C, pay for [X], [Y] and [Z] and herself to travel to Bendigo at least twelve times a year. The wife is also amenable to the husband visiting [X], [Y] and [Z] in [G] whenever he is able to do so.
Travel between Bendigo and [G] is quite onerous. It involves a two hour drive from Bendigo to the airport, a flight to either [locations omitted] and then a drive to [G] which varies from half an hour to two hours depending on which airport the plane lands. It is the wife’s evidence that usually when travelling from Bendigo to [G] they leave at 10.00am and arrive in [G] at 4.00pm.
Given the travel times indicated by the wife, the two weekends per term that she proposes that [X], [Y] and [Z] travel to see the husband in Bendigo will involve quite extensive and tiring travel for [X], [Y] and [Z]. This raises the question of the long term viability of this proposal once all the children are at school as it is apparent that they would need to have Friday off school in order to arrive in Bendigo on a Friday evening and would be returning to [G] very late on Sunday night. This could make [X], [Y] and [Z] very tired for school on Monday.
In these circumstances one wonders how enthusiastically [X], [Y] and [Z] will continue to embrace the high level of travel required on them over an extended time and in turn how that could impact their ongoing relationship with the husband and the extended maternal and paternal families.
In relation to the expenses involved in the cost of maintaining the level of interaction proposed by the wife, as previously set out in the judgment it is the wife’s proposal that she will be financially responsible for the twelve trips undertaken by her, [X], [Y] and [Z] to and from Bendigo each year. Whilst the wife spoke positively about the steps she could take to minimise those costs it is apparent that the costs of that travel will be no less than $10,000.00 per annum.
The wife is currently unemployed and whilst optimistic of obtaining employment in [G], she provided the Court with no evidence of definite employment opportunities in that region.
It is Mr C’s evidence that he is prepared to fund that travel.
Mr C has a base salary of a somewhat modest $67,000.00 per annum and whilst it is his evidence that he is able to earn additional income by doing extra work in his own right in the [business] on a weekend, this is a considerable financial commitment he and the wife are making.
Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
There is no doubt that the parties to these proceedings have and will continue to provide for the emotional and intellectual needs of [X], [Y] and [Z].
In paragraph 68 of her report Ms J states as follows:
68 As parents, both Ms Tacchi and Mr Serio have demonstrated that they place the children as their priority. Both Ms Tacchi and
Mr Serio have the capacity to meet the children’s intellectual and emotional needs and they have been doing this in practice.
Ms Tacchi and Mr Serio developed a parenting relationship that appears to have worked remarkably well for the children.
As a result of their fine parenting after separation, [X], [Y] and [Z] have managed the separation without suffering too much emotionally.
Consideration must be given to the wife’s capacity to continue to parent and provide for [X], [Y] and [Z]’s intellectual and emotional needs in the event that she is not permitted to [G].
In paragraph 73 of her report, Ms J states as follows:
73.It is my view that the issues to be weighed up are whether the children would suffer if Ms Tacchi is not permitted to relocate them as she would then have to maintain a long distance relationship with Mr C. Under these circumstances, Ms Tacchi may become angry and disillusioned; which would impact on her capacity to parent the children leaving the children then suffering effects as a result.
When discussing with Ms J how she would be affected in the event she was not allowed to relocate, the wife indicated it would make her life very, very hard and that whilst she would not become depressed as this would affect [X], [Y] and [Z], she would feel trapped.
When Mr C was questioned as to the impact on him in the event that the wife was unable to relocate, it was his evidence that he and the wife would just have to try and make a long distance relationship work.
It is the husband’s evidence that in the event relocation is allowed, he would be devastated as [X], [Y] and [Z] are his number one priority and the primary focus of his life.
It is the husband’s evidence that in the event that relocation is permitted, he would do everything to maximise his time with [X], [Y] and [Z] and would ensure that that he would continue to work with the wife to accommodate the children’s needs and make their happiness and wellbeing their continued priority.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
Given the relatively young age of the children, particularly that of [Z], concern has to be had as to his and his sisters capacity to maintain a meaningful relationship with the husband if they were to live in [G] as its distance from Bendigo means they will be unable to spend the regular frequent time with the husband that they have been used to, to date.
It is for this reason, that Ms J recommends that if relocation is allowed, it be delayed for at least 12 months to consolidate [X], [Y] and [Z]’s relationship with the husband. This would assist [X], [Y] and [Z] in being able to maintain that relationship after relocation.
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
As has been set out in this judgment, the parties in this matter must be complimented on the manner in which they have fulfilled their responsibilities as parents and ensured that they have put the welfare of [X], [Y] and [Z] as their number one priority.
Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Were it not for the wife seeking to relocate to [G] to pursue her relationship with Mr C, it is unlikely that these parties would have ever required the assistance of the Court in making arrangements for [X], [Y] and [Z].
Post separation, the parties have been able to put in place by agreement child focussed arrangements that ensured that the impact on [X], [Y] and [Z] of the breakdown of the parent’s relationship was minimised.
It is hoped that once the relocation issue has been resolved, the parties will again be able to work closely together to put in place appropriate arrangements that meet the children’s needs.
Section 60CC(m) any other fact or circumstance that the Court thinks is relevant.
It is Ms J’s evidence that because of the children’s relatively young ages, and [Z]’s in particular, relocation, if allowed, should be delayed for at least 12 months to enable [Z]’s relationship with his father to be consolidated.
In his closing on behalf of the wife, the wife’s Counsel advised the Court that the wife had heard the evidence of Ms J during the conduct of the trial and that she was agreeable to relocating in 6 or 12 months’ time.
The husband opposes the relocation and is seeking orders that [X], [Y] and [Z] live with each the parties on a week about basis.
It is Ms J’s quite unequivocable evidence that she did not believe that a shared care regime would be in the best interests of [X], [Y] and [Z], and particularly [Z] until at least the end of his first year of primary school. [Z] is due to start primary school in 2016.
It is Ms J’s evidence that the wife is the children’s primary carer, and that developmentally [Z] is too young to be away from his primary carer on a week-about basis.
It is Ms J’s further evidence that most children find the first year of school very challenging and exhausting because of the huge demands that starting school places on young children. It is for this further reason that she recommends that any move to equal time should not take place until [Z] completes his first year of primary school.
It is the husband’s proposal, having heard Ms J’s evidence that the existing living arrangements continue until the end of 2014 and that there be a week-about arrangement be put in place thereafter. It is submitted on behalf of the husband that this arrangement would allow [Z] to adjust to a week about situation prior to him starting school.
Conclusion
This matter primarily relates to the wife’s application to be able to relocate with the parties’ children [X], [Y] and [Z] from Bendigo to [G] on Northern New South Wales to enable her to live with now partner Mr C.
Mr C is employed in his family [omitted] business in [G] with an expectation of taking over the management and running of that business within the next 5 years. As such, he is committed to the [G] region and is not easily able to move to Bendigo to live with the wife in the event that relocation is not allowed.
It is the wife’s evidence that if not allowed to relocate she will feel trapped and extremely distressed but will do her best to shield [X], [Y] and [Z] from these feelings so that they are not impacted by her personal unhappiness.
The husband is adamantly opposed to any relocation by the wife and [X], [Y] and [Z] to [G].
To their credit, since separation the parties have put in place agreed arrangements which have seen [X], [Y] and [Z] spend no less than four days each week with the husband, thus ensuring a positive, close, loving and meaningful relationship between them and their father.
The husband and the wife, was born in Bendigo and all their family live in the region. Accordingly, [X], [Y] and [Z] have very regular interaction with their extended paternal and maternal families
The husband has entered into a new relationship with Ms S who also lives in the Bendigo region and they have plans to commence cohabitation upon finalisation of these matters.
The husband has secure employment as an [omitted] in Bendigo.
For these reasons the husband sees his life and future being based in the Bendigo region and would be very reluctant to move to [G] in the event the wife is permitted to relocate.
It is the husband’s evidence that he believes that his very close relationship with [X], [Y] and [Z] would be severely impacted in the event that they were to relocate to [G] as he would not have the involvement that he currently enjoys in their day to day lives including being involved in their school and extracurricular activities on a regular basis.
The husband is also concerned about the impact on [X], [Y] and [Z] of not spending regular time with their extended paternal and maternal families in the event that they were to live in the [G] area.
It is the husband’s evidence that [X] and [Y] are well settled in their school and have established many friendships and social activities. To leave school and try and establish themselves in a new area will be very difficult for them.
The husband also expresses concerns that in the event the wife’s relationship with Mr C encounters any difficulties, the wife would not have the support base of family and friends in [G] that she has in Bendigo.
It is the evidence of the report writer Ms J that the ideal for [X], [Y] and [Z] would be for them to remain in the Bendigo region so that they would be able to have the benefit of the ongoing support and love and regular interaction with both their parents and the extended paternal and maternal families.
It is Ms J’s evidence however that in the event relocation were allowed, the close and loving relationship that [X], [Y] and [Z] have with the husband is such that it would be able to be maintained as long as there was regular face to face time and electronic communication between them and the husband.
It is Ms J’s further evidence that given the children’s young ages, and particularly [Z] who is only three, that if there is to be a relocation it would be preferable that the relocation be delayed for at least 12 months to enable the relationship between [X], [Y] and [Z] and the husband to become even more established and ensure its continuity upon relocation.
It is the wife’s proposal that if permitted to relocate, she and
Mr C fund [X], [Y] and [Z] travelling to Bendigo for two weekends in each school term as well as for at least half the term and long summer vacation.
It is the wife’s further proposal that she would be amenable to there being a further trip to Bendigo by the children on a weekend each term if funded by the husband and is agreeable to the husband spending time with the children in the [G] region upon him giving 14 days’ notice of his intention to travel to that area.
It is the husbands proposal that if not permitted to relocate, at the end of 2014 orders be made for [X], [Y] and [Z] to live with each of the parties on a week about basis with them spending time from after school Tuesday until 7.00pm with the parent they are not living with in each week.
It is submitted on behalf of the husband that given the close and loving relationship that [X], [Y] and [Z] have with both of the parents and the positive and cooperative parenting relationship that exists between the parties, this would be an appropriate arrangement for [X], [Y] and [Z].
If not permitted to relocate the wife opposes the husband’s proposal for a shared care arrangement, at least at this time. The wife would seek orders that varies the current arrangements whereby [X], [Y] and [Z] spend part of each weekend with the husband such that she is afforded the opportunity to spend a whole weekend with [X], [Y] and [Z], particularly given that [X] and [Y] are now at school and that [Z] is starting kindergarten in 2014.
The report writer does not support an equal shared living arrangement for [X], [Y] and [Z] at this time. It is Ms J’s evidence that given the wife is the primary carer, [Z]’s very young age and the impact on children of starting school that any move to a shared care arrangement should not take place until [Z] has at least completed his first year of primary school which would be at the end of 2016.
The tension between a parent’s right to pursue their own life post separation and the entitlement of a child to have a meaningful relationship with both his or her parents lies at the very heart of the difficulty this Court faces when determining the application by a parent to relocate in order to move on with their lives and to pursue their future happiness.
This tension becomes even more pronounced, the greater the distance of the proposed relocation because of the practical difficulties of being able to put in place arrangements that enables the children to spend regular time with both their parents and enables both parents to have an active involvement in the children’s day to day lives.
Ultimately the living arrangements for [X], [Y] and [Z] must be determined in accordance with the provisions of the legislation and on the basis on what is in their best interests.
Fortunately for [X], [Y] and [Z], their parents have placed their happiness and emotional stability at the forefront of their post separation interaction and the arrangements that they have put in place for their care. I am satisfied that they will continue to do this into the future.
Because of the attitude and behaviour of the parties, [X], [Y] and [Z] have strong, loving and meaningful relationships with both of their parents. It is the evidence of the report writer Ms J that if the relocation is allowed the meaningful relationship [X], [Y] and [Z] have with the husband will be maintained, albeit that relationship will be altered because of the geographical distance between [G] and Bendigo.
The case law in relation to the question of meaningful relationship is quite clear. When the Court considers the question of best interests of the children the orders made must ensure the continuance of a meaningful relationship between the child and each of the child’s parents. The Court is not required to ensure the “optimal” meaningful relationship.
It is the evidence of the report writer Ms J that if relocation is allowed, it should not take place for another 6 to 12 months to ensure that the meaningful relationship that the children have with their father is further consolidated. To her credit the wife took on board the evidence of Ms J and indicated through her counsel a willingness to delay any relocation for up to 12 months to ensure the best interests of the children.
On balance I am of the view that it is in the best interests of [X], [Y] and [Z] that their mother be permitted to move on with her life and pursue her relationship with Mr C so that she, like the husband, is able to have the opportunity to have a loving adult relationship and provide a loving home for the children.
However, given the evidence of Ms J such relocation shall not take place for a period of 12 months to enable [X], [Y] and [Z] to further consolidate their relationship with the husband.
As set out in this judgment, it is the wife’s proposal that if permitted to relocate she and Mr C will be financially responsible for [X], [Y] and [Z] travels to Bendigo to see the husband and their extended families at least 12 times a year.
Travel between [G] and Bendigo will require the wife and Mr C to make a considerable commitment both financially and personally. I am satisfied that the wife and Mr C have the financial and personal resources to meet this commitment. Most importantly, I am satisfied the wife understands the importance to [X], [Y] and [Z] of being able to spend regular time with the husband in order for them to be able to maintain their very important relationship with him.
The practical difficulties that travelling between Bendigo and [G] have already been flagged in this judgment and it will be very important that both parties ensure that the travel experience for [X], [Y] and [Z] does not become too onerous. During the school term the parties must ensure the travel is arranged so that it has the least impact on [X], [Y] and [Z] and it is suggested they ensure that any weekend time is linked to long weekends and other non-curricular school days as much as possible.
In relation to the living arrangement for [X], [Y] and [Z] pending relocation, I am of the view that the current arrangement whereby the children spend every weekend with the husband should be varied to enable them to spend an entire weekend with the wife. This variation to the living arrangements with the wife should not however in anyway reduce the amount of time that [X], [Y] and [Z] currently spend with the husband.
Accordingly orders will be made that the wife be permitted to relocate [G], New South Wales in 12 months’ time to enable [X], [Y] and [Z] to settle into [G] prior to starting school/kindergarten in 2015. Such relocation shall occur no less than 2 weeks prior to the commencement of the school year in New South Wales in 2015.
Pending relocation [X], [Y] and [Z] will spend two weekends out of three with the husband from after school Friday until 5pm Sunday. This time will move to before school/kindergarten Monday at the commencement of second term in 2014. Otherwise [X], [Y] and [Z] will continue to spend time with the husband from after school until 6.30pm each Monday and Tuesday as well as sharing school holidays and special occasions.
Upon relocation, orders will be made for [X], [Y] and [Z] to live with the wife and spend time with the husband in accordance with the proposal put by the wife. Provision will also be made for the children to spend an additional weekend with the husband each term at his expense and otherwise in the [G] region upon him giving the wife 14 days’ notice of his intention to travel to that area with their parents.
Upon relocation, regular electronic communication between [X], [Y] and [Z] and the husband will be vitally important and orders will be made for there to be Skype and/or telephone communication between them and the husband on no less than two occasions every week.
Whilst this decision will be very disappointing for the husband, I am confident given his commitment to [X], [Y] and [Z] that he will do everything in his power to continue to put them as his number one priority and make sure that their wellbeing and happiness is at the forefront of his behaviours and thinking.
Similarly, given the commitment shown by the wife to the wellbeing of [X], [Y] and [Z], I am confident that she will ensure that she supports their relationship with their father and will do everything necessary to ensure that they spend regular time with him and are afforded an opportunity to interact whenever they reasonably need to do so, either in person or electronically.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 22 January 2014
Key Legal Topics
Areas of Law
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Family Law
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