TAINE & TUCKER
[2014] FCCA 891
•6 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAINE & TUCKER | [2014] FCCA 891 |
| Catchwords: FAMILY LAW – Parenting – mother seeks to relocate with parties’ two children aged 5 and 2 to Japan – father opposes relocation – if relocation allowed at this time the children and in particular the 2 year old would not be able to maintain a meaningful relationship with the father – ordered children remain living in Australia but mother able to make further application in two years’ time if she still seeks to relocate. |
| Legislation: Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Taylor v Barker (2007) 37 Fam FLR 461 MRR v GR [2010] HCA 4 Heath v Hemming (No.2) [2011] FamCA 749 Sigley & Evor (2011) 44 Fam LR 439 |
| Applicant: | MR TAINE |
| Respondent: | MS TUCKER |
| File Number: | MLC 2902 of 2013 |
| Judgment of: | Judge Bender |
| Hearing dates: | 24 & 25 March 2014 |
| Date of Last Submission: | 25 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr O’Shannessy |
| Solicitors for the Applicant: | Marshalls & Dent Lawyers |
| Counsel for the Respondent: | Ms Smallwood |
| Solicitors for the Respondent: | Carew Counsel |
ORDERS
The parties have equal shared parental responsibility for the children [X] born [in] 2008 (“[X]”) and [Y] born [in] 2011 (“[Y]”).
[X] and [Y] live in Melbourne Australia unless otherwise agreed in writing by the parties.
[X] and [Y] live with each of the parties as follows:
(a)With the father:
(i)from 8.30am each Friday until 8.30am on Saturday ([X]) and until 4.00pm on Saturday ([Y]);
(ii)from 8.30am Sunday to the commencement of school ([X]) and 8.30am ([Y]) Monday with the father to drop [X] to school and deliver [Y] to the mother’s residence on Monday morning;
(iii)each Tuesday from after school ([X]) and from 4.00pm ([Y]) until 7.00pm with the father to collect [X] from school and collect [Y] from the mother’s residence at the commencement of time;
(iv)during the long summer vacation 2014/2015 on three of the weekends [X] and [Y] are with the father pursuant to order 3 (a)(i) and (ii) herein, from 9.30am Friday until 7.00pm Monday on such weekends as agreed between the parties and failing agreement, every second weekend;
(v)in the first term school holidays 2015 for one block period of four nights as agreed between the parties and failing agreement from 9.30am the middle Friday of the holidays to 7.00pm the following Tuesday;
(vi)in the second term holidays 2015 for one block period of five nights and failing agreement from 9.30am the middle Friday of the holidays to 7.00pm the following Wednesday;
(vii)commencing the third term holidays 2015 and all school holidays thereafter including the long summer vacation, for half of such holidays as agreed between the parties and failing agreement the first week in the term holidays and on a week about basis in the long summer vacation;
(viii)on special days including [X]’s, [Y]’s and the father’s birthdays, Father’s Day and Christmas at such times as agreed between the parties.
(b)With the mother at all other times including special days to include [X]’s, [Y]’s and the mother’s birthdays, Mother’s Day and Christmas at such times as agreed between the parties.
When [X] and [Y] are spending block periods of three or more days with either parent the other parent shall be permitted to telephone [X] and [Y] every second evening.
Upon [X] and [Y] spending half the school holidays with each parent, the living arrangements as set out in Orders 3(a)(i), (ii) and (iii) herein shall be suspended during the school holidays.
The mother be permitted to travel to Japan with [X] and [Y] on two occasions each year at such times as agreed between the parties in writing and failing agreement, during the Australian school holiday periods as follows:
(a)for three weeks during the long summer vacation to commence no sooner than 27th December each year; and
(b)for ten days in one of the term holiday periods.
For the purposes of the travel to Japan referred to in order 6 herein the mother provide to the father:
(a)The dates of when she proposes to travel at least 60 days in advance in writing;
(b)copies of return flight tickets for herself, [X] and [Y];
(c)details of where [X] and [Y] will be staying including addresses and contact telephone numbers; and
(d)details of any proposed travel within Japan during the vacation periods.
The father be entitled to skype/telephone [X] and [Y] on no less than three occasions per week whilst [X] and [Y] are overseas.
The father and mother be permitted to attend all kindergarten/school events relating to the [X] and [Y] normally attended by parents and receive at their expense all kindergarten/school reports, kindergarten/school photograph order forms and newsletters.
Each party shall advise the other of any serious illness or injury suffered by [X] or [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The Order of the Federal Circuit Court of Australia restraining the removal of [X] born [in] 2008 (“[X]”) and [Y] born [in] 2011 (“[Y]”) from the Commonwealth of Australia made the 17 April 2013 be discharged.
The Australian Federal Police remove the names of [X] and [Y] from the Airport Watch List at all points of international arrivals and departures in Australia.
Septimus Jones and Lee or such other lawyers currently holding [X]’s and [Y]’s passports pursuant to order 3 of the consent orders made
17 April 2013 are directed to return [X]’s and [Y]’s Australian Passports and Japanese Passports to the mother.
AND THE COURT NOTES THAT:
A.In the event the mother wishes to pursue an application to relocate with [X] and [Y] in the future she will not be precluded from doing so on the basis of a Rice v Asplund argument.
IT IS NOTED that publication of this judgment under the pseudonym Taine & Tucker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2902 of 2013
| MR TAINE |
Applicant
And
| MS TUCKER |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed in relation to both parenting and property matters.
The parties were able to reach agreement in relation to property matters and final property orders were pronounced at the commencement of the final hearing.
The remaining matter for determination by the Court relates to the mother’s application seeking to relocate with the parties’ two children [X] born [in] 2008 (“[X]”) aged 5 years and [Y] born [in] 2011 (“[Y]”) aged 2 years to Japan.
The father opposes the relocation of [X] and [Y] to Japan and seeks orders they remain living in Melbourne and that the time they are currently spending with him be increased.
Background
The father was born in [country omitted] on [date omitted] 1958 and is aged 56 years. He came to Australia in 1970 with his parents. He is a [occupation omitted]. He has not repartnered since separating from the mother.
The mother was born in Japan on [date omitted] 1972 and is aged 41 years. She is a [occupation omitted] employed on a part-time basis at [omitted]. She too has not repartnered since separating from the father.
The mother qualified as and worked as a [omitted] in Japan. She first visited Australia on a temporary work visa in 1998. She worked and travelled around Australia for 6 months.
The mother enjoyed her time in Australia and returned to Melbourne as [occupation omitted] for a week in 2003 as this gave her the opportunity to explore the possibility of pursuing further study in Melbourne.
In March 2004 the mother arrived in Melbourne to commence studying at the [omitted] University. In 2004 she studied [omitted]. In 2005 she completed an Advanced Diploma in [omitted] and in 2006-2007 she studied and obtained a Bachelor of [omitted] qualifying in March 2007.
The completion of these qualifications enabled the mother to [occupation omitted] in Australia and she commenced full-time work as a [omitted].
The parties met in 2005 at [omitted]. They commenced their relationship in or about April/May 2007 after the mother had completed her studies.
In May 2007 the mother made an Application for General Skilled Migration to Australia to the Department of Immigration seeking permanent residency in Australia. The mother was granted permanent residency in December 2007.
From monies the mother inherited from the estate of her late father, the mother purchased an apartment in [O] in 2007.
The mother fell pregnant with [X] in 2007 and [X] was born in 2008. Upon [X]’s birth the father moved in with the mother at her [O] property.
Upon [X]’s birth, the mother took 4 ½ months maternity leave and then returned to work. The mother worked three afternoon shifts from 1.00pm to 9.30pm each Friday, Saturday and Sunday. During this time the father cared for [X].
In 2008 the mother sold the [O] property and purchased
Property S. [S] (“Property S”). The parties moved into Property S in February 2009.
In 2010 the mother reduced the number of shifts worked by her to two, working Friday and Sunday afternoon/evenings.
The mother oversaw extensive renovations to Property S as well as the subdivision of the property.
In late 2010 the parties purchased the former matrimonial home at
Property R (“Property R”) and moved into this property in December 2011.
[Y] was born in October 2011. The mother took 7 ½ months maternity leave and then returned to work on a part-time basis undertaking two afternoon shifts on Friday and Sunday.
In 2012 the mother sold Property S. At this time she purchased a property at Property B, [B] with the view of subdividing this property and building four units. When the parties separated the mother did not proceed with the redevelopment and sold this property.
During their relationship, there were considerable tensions between the parties, particularly in relation to the management of their financial affairs and the mother’s belief that the father was not properly meeting his financial responsibilities.
Matters came to a head on 27 March 2013 when there was a very heated argument between the parties over the father’s failure to pay his half share of the mortgage and other commitments for Property R. During this altercation the father grabbed the mother and she was pushed to the ground.
The parties’ relationship ended on this day. They remained separated under the one roof until July 2013 when the father obtained rental accommodation in [R]. Until the father moved out, the care arrangements for [X] and [Y] continued whereby the mother primarily cared for [X] and [Y] and the father had their sole care when the mother was working.
It is the custom in Japan for the children to sleep with their parents. It is common ground that after [X] was born she slept with the mother. When [Y] was born he slept with the mother and [X] slept with the father. When [Y] turned one year and was being weaned, [Y] slept with the father and [X] with the mother. These sleeping arrangements continued until the father left the former matrimonial home.
When the father vacated the former matrimonial home the parties put in place arrangements whereby [X] and [Y] live with the father from 8.30am on Friday to 8.30am Saturday ([X]) and until 4.00pm on Saturday ([Y]), from 8.30am Sunday to 8.30am Monday and from 4.00pm to 7.00pm each Tuesday and otherwise live with the mother. These arrangements continue to this day.
After the 28 March 2013 incident, the father filed an urgent Application seeking an interim order that the mother be restrained from removing [X] and [Y] from Australia.
It is common ground that when the parties were together they discussed the possibility of taking [X] and [Y] to live in Japan for their primary school education to allow them to experience their Japanese culture. At the time the parties separated, it was the father’s concern that with the breakdown of the parties’ relationship the mother would unilaterally take [X] and [Y] to Japan.
On 17 April 2013 an order was made by consent requiring the mother to deliver [X]’s and [Y]’s passports to her solicitors and putting in place an Airport Watch List order preventing [X] and [Y] from leaving Australia.
In the mother’s affidavits sworn 7 July 2013 and 5 July 2013 the mother deposed that whilst she would prefer to raise [X] and [Y] in Japan she realised that she would need to make an application to the Court to relocate and that:
This is not something that am seeking to pursue at this time[1]
[1] Paragraph 37 of the mother’s affidavit sworn 4 July 2013 and filed 5 July 2013
However on 6 September 2013 the mother filed an Amended Response in which she sought an order that:
the children be permitted to relocate to Japan
In the affidavit filed by the mother on 6 September 2013 in support of her Amended Response and explaining why she is now seeking orders enabling her to relocate with [X] and [Y] to Japan the mother deposes as follows:
[45] I did not make this Application to relocate originally when the Court proceedings were issued by [Mr Taine] because I was afraid. I was afraid of upsetting [Mr Taine]. I was afraid of dragging out the litigation with uncertain results. I do not like conflict and would describe myself as not assertive at all.
[53] When I think about not returning to live in Japan I become upset. I try not to think about too much because I become upset about having to stay in Australia until the children reach adulthood another 15 years. It was never in my long term plans to remain in Australia, even after having children here. My home is Japan and this is where I grew up and I associate with being Japanese.
[54] I have loved living in Australia and the experience that it has given me, but I am isolated living here.
[X] commenced Grade Prep at [omitted] Primary School in 2014. [X] also attends Japanese School each Saturday from 9.00am to 1.30pm and has done so since she was 4 years old.
The Evidence
The Father
The father relies on his trial affidavit sworn 29 November 2013. The father also gave viva voce evidence at the final hearing.
The father is seeking orders that the mother’s Application to relocate with [X] and [Y] be dismissed.
In the event that [X] and [Y] remain in Australia the father seeks orders that [X] and [Y] spend time with him from 4.30pm Thursday to 8.30am Saturday ([X]) and until 4.00pm Saturday ([Y]), from 8.30am Sunday to 8.30am Monday and from 4.00pm to 7.00pm each Tuesday. In relation to school holidays, the father seeks that [X] and [Y] spend from 8.30am Friday to 4.00pm Monday on each weekend of the school holidays with him and that when [Y] turns 3 years of age that they spend week about with each of the parties during all school holidays as agreed between the parties and failing agreement, the first week with the father.
The father further proposes that the mother be permitted to travel with [X] and [Y] to Japan for 10 days on two occasions each year, once during the long summer vacation and once on one of the term holidays on the condition the mother provides 60 days written notice of her intention to travel, provides copies of return flight tickets for herself, [X] and [Y] and details of where [X] and [Y] will be staying and travelling in Japan including addresses and contact telephone numbers. The father also proposed he be permitted to skype / telephone [X] and [Y] three times per week when they are visiting Japan.
In the event [X] and [Y] are permitted to relocate to Japan, the father proposes [X] and [Y] spend half of each of the three Japanese school holidays with him with any two of these on his nomination being in Australia and the third in Japan. The father also seeks to spend time with [X] and [Y] on such additional occasions he can travel to Japan. He further proposes he communicate with [X] and [Y] no less than three times each week on skype.
It is the father’s evidence that he and the mother have been actively involved in the care of [X] and [Y] since their birth.
The father describes a close and loving relationship with both [X] and [Y] and expresses a genuine concern that if they are permitted to relocate to Japan their relationship with him, and his relationship with them, will all but disappear.
It is the father’s evidence that he is not in a position to relocate to Japan the father speaks almost no Japanese, his family including his elderly mother who does not have the best of health, his two sisters and brothers and their children are all resident in or around Melbourne, he has a very senior position as [omitted] and at his age he will find it most difficult to find employment at a similar level in Japan.
The father agrees that when he and the mother were in their relationship they had discussions about the possibility of living in Japan with [X] and [Y] during their primary school years to afford them the opportunity to experience their Japanese culture.
It is the father’s evidence however that the parties had not agreed to this course of action and that it was one of several possibilities that they had discussed.
It is the father’s evidence that whilst he understands that the wife is very unhappy at the idea of having to continue to live in Australia and that she has struggled to fully embrace the Australian culture, he believes that she is sufficiently resilient to be able to make a life for herself in Australia.
In support of this belief the father points to the mother choosing to come to Australia to pursue tertiary qualifications which she was successful in obtaining, that she has held down both full and part-time employment as a well-respected [omitted], her successful investment in real estate in Australia including her ability to successfully sub-divide the [S] property at a considerable profit and her involvement with [X]’s Japanese school as well as a Japanese mother’s group when [X] was a child as all proof of her ability to thrive and prosper in this country.
In the event that [X] and [Y] are permitted to relocate to Japan, it is the father’s evidence that his capacity to travel to Japan would be limited by both his employment and the financial expense of travelling to Japan and accommodating himself for lengthy periods of time. It is his evidence this would restrict his ability to spend as much time as he would like with [X] and [Y] in Japan.
It is the father’s evidence that if [X] and [Y] were permitted to relocate at this time, it would be almost impossible for him to maintain his very close relationship with [X] or to develop any kind of meaningful relationship with [Y] in particular given [Y]’s currently only two years of age and his English language skills are only developing. If [Y] were to move to Japan at this time he would lose all English and would have no capacity to communicate with his father whatsoever.
It is the father’s evidence that he believes that as it is not in the [X]’s and [Y]’s best interests to relocate to Japan at this time. Further the father argues that given [X]’s and [Y]’s very young ages, his very close relationship with [X] and his developing relationship with [Y], it is not possible for the Court to make a decision at this time that it would be in their best interests to be permitted to relocate in one, two or three years’ time.
It is therefore the father’s evidence that the Court should not permit [X] and [Y] to relocate at this time and that the question of whether they can relocate when they are older should be determined at that later date in the event the mother still wishes to relocate to Japan.
In relation to the living arrangements for [X] and [Y] in the event that they are not permitted to relocate to Japan, the father is seeking an additional night each week with [X] and [Y] over and above the current arrangements as well as a capacity to have block periods of holiday time with the children.
It is the father’s evidence that the mother has not allowed him to have any more than three nights with [X] and [Y] during holiday periods and he believes that once [Y] is three years of age both children are more than able to spend a longer period of time with him to enable him to take them on holidays and to spend time with his family.
The Mother
The mother relies on her affidavits sworn the 4 July 2013,
6 September 2013 and 13 March 2014. She also relies upon the affidavits of the maternal grandmother Mrs T sworn the 11 November 2013 and 21 March 2014. The mother also gave viva voce evidence at the final hearing of this matter.
It is the mother’s evidence that with the breakdown of the relationship with the father, she is desperately unhappy living in Australia and wants to return home to Japan.
It is the mother’s evidence that whilst she voluntarily came to Australia to enhance her qualifications and to experience living in another culture she has never really connected with the Australian way of life and that it was always her intention to return to Japan to live.
It is the mother’s evidence that she and the father discussed living in Japan with [X] and [Y] particularly in their primary school years and that it was her understanding that this would take place when the father retired from his employment at [omitted], something that they discussed on many occasions.
It is the mother’s evidence that she, [X] and [Y] will be able to live with her mother in Tokyo. Her mother’s home has three stories and has more than ample accommodation for herself, [X] and [Y].
It is the mother’s evidence that there is a primary school a short distance from her mother’s home. This school is [omitted] Primary School and is the school that the mother attended when she was a child. It is her intention that [X] and [Y] would attend this school.
It is the mother’s evidence that [X] is learning Japanese in Australia having attended a Japanese school since she was four years of age.
It is the mother’s evidence that she speaks Japanese with [X] and [Y] as does the Japanese au pair that the mother has employed to assist in the care of [X] and [Y] since the parties separated. It is her evidence both [X] and [Y] are bi-lingual.
It is the mother’s evidence that she is able to readily obtain employment as a [omitted] in Japan and she has made enquiries with [workplace omitted]. This [workplace] has indicated that there would be a position available for the mother if she were to move back to Japan.
Whilst the mother confirmed that [X] and [Y] have a very close and loving relationship with the father, it is the mother’s evidence that she has been [X]’s and [Y]’s primary carer. It is her evidence that she cooks the majority of [X]’s and [Y]’s meals, that they sleep with her except when they are in the father’s care and that she is responsible for [X]’s Japanese school as well as the parent who is most involved with [X]’s primary school.
When giving her evidence the mother became visibly distressed when contemplating the possibility of having to remain living in Australia. The mother questioned whether she would be able to return to live in Japan in fifteen or twenty years’ time once the children were adults as by then she would have lived outside of Japan for nearly 30 years..
The mother also became very distressed when discussing the impact on [X] of being separated from the father. Whilst she describes [Y] as quite independent, she describes [X] as being a lot more sensitive and needing a great deal more love, caring and attention. The mother was clearly concerned as to how [X] would cope with not seeing her father regularly and it was her evidence that it would be very hard for [X] to be separated from her father.
The evidence of the family report writer Mr B is that he is very strongly of the view that it would not be in [Y]’s best interests to relocate to Japan at this time given his very young age. It is Mr B’s evidence that if [Y] were to relocate to Japan at this time then he would not be able to have any kind of meaningful relationship with his father as he is not developmentally mature enough to maintain a distance relationship with his father. Further, given his very limited language skills as a two year old, it is Mr B’s evidence that [Y] would quickly lose any capacity to speak English and therefore any capacity to communicate with his father at all. It was therefore Mr B’s evidence that any relocation should not take place for at least two years.
Whilst it is the mother’s evidence that she is desperate to return home to Japan as soon as possible given Mr B’s evidence, the mother indicated to the Court that if she knew she would be able to return to Japan, whether that be in 12 months, 18 months or two years’ time, this would give her “goal” that would enable her to manage to continue to live and parent the children in Australia over that period.
Mrs T
Mrs T is the maternal grandmother. Mrs T swore two affidavits on 11 November 2013 and 13 April 2013 in support of the mother’s application. Mrs T also gave viva voce evidence at the final hearing of this matter.
It is the maternal grandmother’s evidence that she has visited her daughter, and grandchildren after their births, in Australia on average twice each year since the mother moved here in 2004. It is her further evidence that her daughter has visited her in Tokyo as have both [X] and [Y] since the mother moved to Australia.
It is the maternal grandmother’s evidence that her daughter and grandchildren are welcome to live with her in the event they are permitted to relocate to Japan and that she will be in a position to assist in looking after [X] and [Y] whilst her daughter is working.
The maternal grandmother confirmed that her home is well located in Tokyo and is less than five minutes’ walk from kindergartens and schools which [X] and [Y] will be able to attend.
It is the maternal grandmother’s evidence that the family owns an apartment in Tokyo that they would be willing to make available to the father for his accommodation free of charge any time he chose to visit Japan to spend time with [X] and [Y] in the event that they were living in that country with their mother.
It is the maternal grandmother’s evidence that in the event [X] and [Y] continue to live in Australia, she will continue to visit them regularly for as long as she is well enough to do so.
Mr B
Mr B is a regulation 7 family consultant with the Federal Circuit Court. He prepared a family report in relation to this matter dated 6 December 2013. Mr B also gave viva voce evidence at the final hearing of this matter.
Under the heading Evaluation in his family report Mr B states as follows at paragraph 31:
[31] As each parent has a strong relationship with the children and spends substantial time with them each week since the separation, relocation to Japan would dramatically alter the balance of time [X] and [Y] spend with each parent. Although Ms Tucker has been their primary caregiver during their younger years, Mr Taine has played an increasing role as a parent as the children grow older. This is particularly evident in his relationship with [X] and is in part due to the fact that [X] can communicate with her father.
Paragraph 32:
[32] [Y] cannot yet speak enough to be understood beyond a few words and enjoys the loving environment he feels in both households. His attachment to and memory of his father would be diminished significantly if he was limited to skype conversations, when he can talk, and visits to Australia twice a year. [Y]’s capacity to speak English would be reduced to a minimal level, if at all, if he went to Japan in the near future. Consequently he would not be able to communicate with his father once he learns to speak, as Mr Taine speaks minimal Japanese.
Then in paragraph 35 and 36 of his family report Mr B states as follows:
[35] I do not believe it is in the best interests of [X] and [Y] to substantially reduce the time they spend with their father at this stage. [Y], in particular, needs to develop a strong bond with his father and to be able to communicate with him at a meaningful level, similar to [X], before a move to Japan could be considered. Mr Taine has not had time to properly process the possibility of the children moving to Japan post separation and needs to consider his own future plans.
[36] The children need the different parenting styles of each parent at this stage of their lives. [X] and [Y] have a meaningful connection to Mr Taine’s large extended family who have regular contact with each other. If they were to move to Japan in the near future they would lose those connections as well as the sense of having a father. It is likely Ms Tucker will still want to move to Japan when the children are both primary school age and able to communicate and stay connected to their father, if he remains in Australia. I support such a move taking place at that stage rather than at present. In the meantime the children would benefit from regular trips to Japan with their mother to help them adapt to the change should it take place in the future.
In conclusion under the heading Recommendations Mr B states as follows:
[37] It is recommended that [X] and [Y] do not relocate to Japan with their mother at this young stage of their lives, as they need to develop and consolidate their existing relationship with their father and paternal extended family in Australia.
In his viva vice evidence Mr B expanded on his reasons for not recommending relocation at this time, as follows:
I made it clear in the report, I was particularly concerned about [Y], who really would, his relationship would drop off dramatically, and the language would be one of the issues…worried about, is that, when in Japan, there’s not much need to speak English, and his father does not speak Japanese very well. And it is just a very basic level of just being able to speak would be a problem to start with, then [Y]’s memory of his father would get fuzzy very quickly. With [X], it would be a bit stronger. You know, can talk to her father; she could write to her father; she could skype her father. But, you know, over time of course, things diminish.
It was put to Mr B by the father’s Counsel that his recommendation in his report “that I support such a move taking place at that stage (sic when both children are of primary school age)” seemed to be predicated on the presumption that the mother would ultimately be permitted to relocate with [X] and [Y] when they were older and better able to maintain a long distance relationship with their father from Japan.
It was suggested to Mr B that any relocation by [X] and [Y] at a later date unless agreed to by the parties would have to be a matter for the Court at that time. Mr B responded to this as follows:
Look…that wasn’t clear the way it was expressed. I think – I was aware that she is unlikely to not want to go to Japan, so that’s always going to be on the table. So for everyone to start preparing that likelihood, that – either whether it is a fresh application or it is written in to orders now that’s a likely occurrence.
When asked to further expand on this issue, Mr B stated:
And so many things could happen between now and three years’ time that may influence that being an automatic assumption, that that should happen. So I guess what I am saying is that that’s likely, parties should prepare for that on both sides, the Court should be prepared for that. But actually how it occurs, I – I’m not sure myself. I think that’s a matter for the Court.
Mr B confirmed in his viva voce evidence that the mother is very unhappy at being required to continue to live in Australia but that from his observation she had not let her personal unhappiness impact upon the children or her parenting of them.
Mr B expressed the opinion he felt the mother to be sufficiently robust to be able to protect [X] and [Y] from her unhappiness. Mr B’s opinion was based on the mother having exhibited the resources to obtain academic qualifications in Australia, develop professional and personal networks and to become successfully and actively engaged in the property market in Australia. Mr B observed that the mother had moved to Australia of her own free will rather than accompanying the father after they had commenced a relationship in Japan and as such had established a life in this country before entering into her relationship with the father.
It was Mr B’s evidence that he was of the view that the mother is a person who is very much aware of her children’s needs and she would not burden them with her unhappiness. He found her to be a very intelligent woman who is very must focussed on the best interests of the children.
In relation to [X]’s and [Y]’s living arrangements in Australia, it is
Mr B’s evidence that he does not believe that there should be any reduction in the time that the children spend with both their parents and that it is important that whatever arrangements are put in place, those arrangements enable both parents to be actively involved in the children’s school or kindergarten.
In relation to [X] and [Y] spending block periods of time with the father during school holiday periods, it is Mr B’s evidence that he believes that the father’s proposal for increased block time once [Y] is aged three years would be appropriate including the possibility of alternate week time subject to the parents monitoring that [Y] is coping with being away from his mother for that period of time and adjusting the arrangements to meet his needs. Mr B was of the view that both parents are appropriately attuned to [X]’s and [Y]’s best interests and that they would make sure that they properly monitored [X] and [Y] so that if either of the children were missing the other parent and becoming distressed by being away from the other parent they would ensure that the children were able to contact the other parent.
The Legal Approach
As noted this matter relates to the mother’s application to relocate with the parties two children [X] and [Y] to Japan, her country of birth.
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.[2]
[2] 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 Parental Responsibility
In this matter there is no dispute between the parties that they should have equal shared parental responsibility for [X] and [Y].
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.
In this matter, whilst there was a very unpleasant altercation between the parties at the time of separation, they have otherwise been able to work cooperatively to co-parent [X] and [Y].
The parties were separated under the one roof for four months after the breakdown of their relationship and continued to co-parent in very much the same way they had prior to the breakdown of their relationship and without further altercation or incident.
Upon separation the parties have put in place arrangements that involve [X] and [Y] seeing their father five days out of seven in each week which requires the parties being involved in multiple changeovers weekly. All of this has occurred without incident.
Whilst both parties acknowledge they have very different parenting styles, they recognise that those different parenting styles benefit [X] and [Y] and speak positively of the others relationship with their children.
In these circumstances it can be seen that the parties have demonstrated a very clear capacity to co-parent [X] and [Y] and to work with each other in [X]’s and [Y]’s best interests.
Accordingly orders will be made for the parties to have equal shared parental responsibility for [X] and [Y].
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.”The Court must therefore 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 that the mother is permitted to relocate with [X] and [Y] to Japan, it would not be practical for [X] and [Y] to spend equal or even significant of substantial time with the father given that they will be living in different countries.
In the event [X] and [Y] remain in Australia, both parties proposals would see them continuing to be actively involved in the care of [X] and [Y] and for [X] and [Y] to spend significant and substantial time with both of their parents.
Best Interests of the Child
To determine 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 199 CLR 160, U & U 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
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
[X] and [Y] have a close and loving relationship with both their parents and spend substantial time with each of their parents during each week.
To their credit both parties have put in place arrangements that have ensured that [X] and [Y] have been given the opportunity to continue to develop their loving relationship with both their parents.
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 Mr B that if [X] and [Y] were to relocate to Japan at this time the close and loving relationship that they have with their father would be greatly impacted.
In particular, it is Mr B’s evidence that if [Y] were permitted to relocate to Japan at this time his relationship with his father would be severely impacted as he is not developmentally old enough to retain an active memory of his father if he were to only see him twice a year and particularly because he would not have the requisite language skills to be able to communicate with his father given that in Japan [Y] is unlikely to retain his limited English and the father speaks minimal Japanese.
It is Mr B’s evidence that whilst [X] has both the developmental capacity and language skills to be able to maintain a connectedness with her father if she were to relocate to Japan, that relationship too would be greatly diminished with the infrequency of face to face interaction.
It is the for these reasons that it is Mr B’s very strong evidence that it would not be in [X]’s and [Y]’s best interests to relocate to Japan at this time and that any consideration of relocation should be delayed for at least two years to enable [Y] in particular to consolidate his relationship with the father and to develop the requisite language skills to be able to maintain his relationship with his father if he were to relocate to Japan.
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.
I am satisfied that there is absolutely no risk that [X] or [Y] would be physically or psychologically harmed in the care of either of the parents or that they have been or 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 where applicable to 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.
Given [X]’s and [Y]’s very young ages their views have not been canvassed.
Appropriately, [X] and [Y] are not aware that the question of relocation is something that is being discussed as both parents are of the view that they are not old enough to be burdened with such information, particularly when it is still not known whether relocation is to take place.
It is noted however that it is Mr B’s recommendation that if the question of relocation is to remain live then both [X] and [Y] should be aware of that prior to that issue being determined at a later date.
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] and [Y] have very strong and loving relationships with both of the parties.
It is the father’s evidence that his mother and extended family all live within 15 kilometres of each other and that when in his care [X] and [Y] enjoy positive relationships with their grandmother, aunts, uncles, cousins and second cousins.
It is the father’s evidence that the paternal grandmother sees the [X] and [Y] every Friday when they are in his care and that they have a close a loving relationship with their paternal grandmother.
It is the mother’s evidence, confirmed by the maternal grandmother that the maternal grandmother has been a regular visitor to Australia to see both her daughter and her grandchildren and that [X] and [Y] have both travelled to Japan at different times to spend time with the maternal grandmother. As such [X] and [Y] have a strong relationship with their maternal grandmother.
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 has been set out in this judgment, both parties are actively involved in [X]’s and [Y]’s care and have been since their birth.
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] and [Y].
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 mother is permitted to relocate with [X] and [Y] to Japan there will be a significant impact on their relationship with the father and the extended paternal family.
Currently [X] and [Y] spend time with their father five days out of seven in every week.
It is the father’s evidence that whilst spending time with him they see their paternal grandmother at least every Friday as well as having considerable interaction with the extended paternal family including their aunts, uncles and cousins.
In the event of relocation to Japan [X] and [Y] would only travel to Australia on both parties’ proposals twice a year which would greatly impact their ability to spend regular time with their father and their extended paternal family.
Whilst much of the evidence in relation to whether the relocation should occur, at least at this time, is focussed on [Y]’s very young age and therefore his ability to maintain a meaningful relationship with his father in the event that relocation should take place at this time the mother when giving her evidence became extremely distressed when contemplating the impact on [X] if she were to relocate to Japan.
As previously set out in this judgment, the mother became visibly distressed when contemplating the impact on [X] as she recognises that [X] and the father have a very close bond and that [X], who the mother described as a ‘loving and caring little girl,’ would be severely impacted by the separation from the father.
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 mother’s proposal that if permitted to relocate to Japan that the father spend up to four weeks with [X] and [Y] during the long Japanese school holidays in July and August and, two weeks during the Japanese school holiday in March and April in Australia and at any other time that the father is in Japan upon giving the mother 60 days’ notice.
It is the mother’s further proposal that until the end of 2016, when spending time with the father in Australia pursuant to her proposal, that [X] and [Y] spend three nights with the father then return to the mother for two nights and then back to the father for three nights etc.
It is the mother’s evidence that she does not believe that [Y] will be old enough to spend any longer than three nights away from her until the end of 2016.
It is the mother’s further proposal that the father be able to communicate with [X] and [Y] by way of skype or telephone on at least two occasions each week, once on the weekend and once during the week.
It is the mother’s evidence that she will pay the costs associated with herself, [X] and [Y] coming to Australia to spend time with the father on the two occasions each year they travel to Australia.
It is the father’s evidence that if [X] and [Y] relocate to Japan he would travel to Japan to visit [X] and [Y] as often as he could but that his current employment and the cost of travel and accommodation would limit his capacity to travel to Japan with any frequency.
Whilst acknowledging the generosity of the maternal grandmother’s offer of accommodation in Tokyo when visiting [X] and [Y], the father was reluctant to accept this offer.
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.
The parties of these proceedings will continue to provide for the emotional and intellectual needs of [X] and [Y] as they have done to date.
Both parents concede that they parent differently which may in part reflect their different cultural backgrounds. Both parents acknowledge that [X] and [Y] benefit from their parents’ different cultures and from their parents different parenting styles.
It is Mr B’s clear evidence that [X] and [Y] benefit from and will continue to benefit from what both their parents bring to the children’s lives.
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 children’s very young ages, and in particular that of [Y], it is Mr B’s clear evidence that a relocation to Japan at this time would result in [Y] being unable to maintain a meaningful relationship with the father.
It is for this reason that Mr B was quite adamant in his evidence that it would not be in the best interests for [X] and [Y] to relocate to Japan at this time and that he recommends the question of relocation be postponed until [Y] is of primary school age.
[X] and [Y] have an interesting heritage. The father is from a [omitted] background however he considers himself to now be Australian. The mother is Japanese. It will be important for [X] and [Y] to be given the opportunity to experience their cultural background and to be afforded the opportunity to fully embrace the totality of their heritage.
To their credit the parties have ensured that [X] has been attending Japanese school since she was four years of age and it is the parties’ evidence that [X] now speak Japanese fluently and is learning to write in that language.
Similarly [X] is fully fluent in English and has commenced her education within the Australian school system.
At this time [Y]’s language skills are only just developing and he is not fluent in either Japanese or English. It his parents’ intention however that [Y] will be fluent in both languages like his older sister.
It is the mother’s evidence that if permitted to relocate to Japan, she will ensure that [X] and [Y] attend English school in the same fashion that [X] currently attends Japanese school in Australia so that they maintain their English language skills.
The mother also expressed a willingness if permitted to relocate to Japan to enrol [X] and [Y] in an international school. It is the father’s evidence that if the children are permitted to relocate to Japan he would prefer them to attend a Japanese school so they are properly enmeshed in their Japanese culture and are afforded the opportunity to form friendships amongst the families in the area in which they live.
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
As has clearly set out in this judgment, both the parties in this matter have fulfilled their responsibilities as parents and I am satisfied that the welfare of [X] and [Y] is at the forefront of their priorities.
Section 60CC(j) any family violence involving the child or a member of the child’s family.
It is the mother’s evidence that the father was verbally and emotionally abusive during their relationship and describes that at times he would become angry and physically threatening.
On the day the parties separated the parties had a very heated argument and it is the mother’s allegation that the father grabbed her and pushed her over on floor of the kitchen as a result of this she was quite badly bruised.
The father denies the allegations that he was abusive to the mother during the relationship but conceded that there were many arguments between them, particularly in relation to financial matters.
It is the father’s evidence that they did have a very heated argument on 27 March 2013 that led to their final separation and that during this argument he pushed the mother to the ground. It is his evidence that he was very ashamed of this at the time of the incident and it was apparent that he continued to be highly ashamed of what occurred on that occasion when giving his evidence at the final hearing of this matter.
I am satisfied that this was an isolated incident predicated by the tensions and arguments between the parties at the time of separation.
That the parties were able to remain separated under the one roof and put in place the amicable child care arrangements that have ensued involving multiple weekly changeovers without incident is indicative that violence is not an ongoing factor in this matter.
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
Whilst ideally the Court aims to put in place arrangements for children that will enable the parties to move on with their lives and avoid the necessity of further litigation, that is not always achievable nor necessarily in the best interests of the children.
In this matter, whilst the mother would ideally seek to relocate with [X] and [Y] immediately, having heard the evidence of Mr B indicated through her Counsel a willingness to delay that relocation for a further two years to enable [Y] in particular to consolidate his relationship with his father and to develop the language skills such that he would be able to maintain a meaningful relationship with the father upon relocation to Japan.
In those circumstances the mother proposed in the alternative that this Court should make orders providing for [X] and [Y] to relocate to Japan by April 2016.
The father through his Counsel argued that this alternative proposal of the mother is not in [X]’s and [Y]’s best interests as it was impossible for the Court at this time to determine whether such a relocation would be in [X]’s and [Y]’s best interests in two or three years’ time as the Court would not be able to assess what the impact on [X] and [Y] would be of relocation at that time.
It was therefore argued on behalf of the father that this was a matter where it could not be seen to be in [X]’s and [Y]’s best interests for the this Court to make an order that was least likely to lead to further litigation.
Section 60CC(m) any other fact or circumstance that the Court thinks is relevant.
It is the father’s proposal that the current living arrangements for [X] and [Y] be varied such that [X] and [Y] spend time with him for an additional 24 hours in each week being from Thursday through to Saturday rather than the current arrangement of Friday through to Saturday.
The difficulty with this proposal is that it would involve [Y] in particular living for longer periods of time with the father than the mother. Given that I am satisfied that the mother is [Y]’s primary carer this cannot be seen in [Y]’s best interests at this time.
One of the primary reasons given by the father for his proposal for additional time is that under the current arrangement he only has interaction with [X]’s school on one day in each week and otherwise the mother is responsible for school delivery and collection.
Whilst the father collects [X] and [Y] on Tuesday afternoon and returns [X] and [Y] on Monday morning under the current arrangements, he collects and delivers [X] and [Y] to the mother’s residence and she takes and collects [X] to and from school.
It is the mother’s evidence that she is not confident the father will attend to all the practical requirements that ensure that [X] is ready for school and that she likes to be able to ensure that that she has all arrangements in place.
It was apparent from the evidence that there is no practical reason why the father could not collect [X] from school on Tuesday afternoon or drop her to school every Monday morning and then collect or deliver [Y] home to his mother. This would enable the father to have a greater involvement with [X]’s school.
Conclusion
There is a very good reason that relocation cases are often described as amongst the most difficult that the Court is required to determine.
Generally in relocation cases the Court is dealing with two very good, loving and committed parents who with the breakdown of their relationship find that their life directions and life choices are dramatically altered. This is such a matter.
The mother is Japanese. She embarked on an adventure and came to Australia with the view to enhancing her professional qualifications and experiencing a period of working in another culture.
It is the mother’s evidence, which I accept, that when embarking on this adventure it was not her intention to permanently leave Japan and live in Australia for the rest of her life. I accept if she had not unexpectedly fallen pregnant with [X] she would not have remained in Australia for the length of time that she has.
With the breakdown of her relationship with the father, the mother has even more strongly felt her sense of cultural isolation and the need to return home where she can have the support of her family and lifelong friends as well as the comfort of living in the country and culture to which she was born.
That she finds herself having to remain living in Australia is causing her to be deeply unhappy. She is understandably fearful that if she is required to remain in Australia until the children reach adulthood, the nearly thirty years away from her country of origin will mean it will be too late for her to return home.
However [X] and [Y] are Australian born of a father who is an Australian citizen. If they were to relocate to Japan with the mother then their capacity to have a meaningful relationship with their father will be severely impacted.
It is this tension between the parents right to pursue their own life post separation including their right to freedom of movement and the entitlement of a child to have a meaningful relationship with both his or her parents that lies at the very heart of the difficulty that this Court faces when determining the application of a parent who wishes to relocate in order to be able to move on with their lives and to pursue their own 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 children to spend any regular time with the parent they are not living with.
Ultimately however the living arrangements for [X] and [Y] must be determined in accordance with the provisions of the Act which is on the basis on what is in their best interests.
It is the clear evidence of the report writer Mr B that it is not in the best interests of [X] and [Y], and [Y] in particular, to relocate to Japan at this time. It is Mr B’s evidence that at this very young age [Y] would lose any semblance of a meaningful relationship with his father if he were to move at this time as he is not developmentally able to maintain a long distance relationship and does not have the language skills that would enable him to maintain that relationship at this stage.
It is therefore Mr B’s recommendation that any relocation by [X] and [Y] not take place for at least another two years or until such time that [Y] is of primary school age.
It is Mr B’s evidence that he believes the mother will always wish to relocate to Japan and that accordingly orders could be contemplated that make provision for relocation when [Y] is approaching that age.
Whilst it is the mother’s position that ideally she would seek to relocate at this time, it is her evidence that orders that make provision for her to relocate in the future would make it bearable for her to remain in Australia knowing that she was going to be able to return to Japan, albeit not as soon as she would have hoped.
It is submitted on behalf of the father that whilst there are occasions when this Court makes orders in relation to children’s living arrangements into the future, this is not a matter when this Court should embark on this course of action.
It is submitted on behalf of the father that as it is not in [X]’s and [Y]’s best interests to relocate at this this time the Court cannot know that it will be in [X]’s and [Y]’s best interests to relocate in two or three years’ time given the multiple unknown changes and developments that will occur between now and a future relocation.
It is submitted on behalf of the father that whilst ideally the Court strives to make orders that does not promote future litigation, this is one case where such orders would not be in [X]’s and [Y]’s best interests.
It is therefore submitted on behalf of the father that the Court should not allow [X] and [Y] to relocate at this time and should embrace the reality that if the parties are not in agreement in two or three years’ time about the question of relocation then the matter will have to return to Court for that question to be determined on the basis of what is in the best interests of [X] and [Y] at that time.
Whilst there must be an enormous amount of sympathy for the position that the mother finds herself in, the submissions put on behalf of the father are most persuasive.
It is quite apparent that relocation at this time is not on [X]’s and [Y]’s best interests given [Y]’s very young age and that he has not had any opportunity to consolidate a meaningful relationship with his father such that he would be able to maintain it if he were to relocate to Japan at this time.
Whilst it is very tempting to make orders that would enable relocation in two or three years’ time, I am not persuaded that such an order can be seen to be in the best interests of [X] and [Y].
Perhaps the most compelling evidence in this regard was that of the mother’s and in particular her very real distress when she contemplated the impact on [X] of moving away from her father at this time.
To try to consider what will be in [X]’s and [Y]’s best interests in two or three years’ time is, I believe, an inappropriate exercise of this Courts discretion.
Accordingly relocation will not be allowed by the mother but the question of her relocation, if this is something that she wishes to pursue in two years’ time, is an application that she will be able to again bring before the Court without any argument being raised that in so doing the principal in Rice v Asplund should apply.
In relation to [X]’s and [Y]’s ongoing living arrangements orders will be made that the existing weekly arrangements will continue save and except that on Monday morning the father is to return [X] to school before dropping [Y] back to the mother and he shall pick [X] up from school on Tuesday afternoon before collecting [Y] from the mother. This will allow the father a much greater hands on involvement in [X]’s schooling.
In relation to school holiday arrangements, I am of the view that once [Y] is three years of age he will be more than capable of spending block periods of time with the father during the school holidays. I am of the view the length of those block periods of time should be gradually increased over the next 12 months to enable [Y] to adjust to the increased time away from the mother.
Accordingly orders will be made that in the long summer vacation 2014/2015 on three weekends when [X] and [Y] are with the father they shall spend from 9.30am Friday until 4.30pm Monday with him. In the 2015 first term holidays that time will be extended so that [X] and [Y] spend time with the father for a block period of four days. In the term two holidays 2015 [X]’s and [Y]’s time with the father shall be extended so that they spend a block period of five days with him. From the third term holidays 2015 the parties shall share the school holidays on a week about basis.
When spending block periods of time with either parent for three or more days, the other parent shall be able telephone [X] and [Y] every second evening.
The mother shall be permitted to travel with [X] and [Y] to Japan twice each year for a period of 3 weeks in the long summer vacation and for 10 days in one of the term holidays. The mother is to provide the father with 60 days’ notice in writing of her intended travel times, she shall provide the father with copies of return flight tickets for herself and [X] and [Y] and details of where [X] and [Y] will be staying and travelling in Japan including addresses and contact telephone numbers. Whilst the mother is in Japan the father shall be able to communicate with [X] and [Y] no less than three times weekly by way of telephone and skype.
Whilst the Court fully understands that this decision will be very distressing for the mother, it must be clearly understood that it is not a decision that in any way makes findings that there should not be a relocation by the mother, [X] and [Y] in the future. Rather if the mother seeks to relocate to Japan with [X] and [Y] in the future, that decision needs to be made at the time of any proposed relocation so that the best interests of [X] and [Y] can be determined at that time.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 6 May 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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