Taylor and Barker
[2006] FMCAfam 706
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAYLOR & BARKER | [2006] FMCAfam 706 |
| FAMILY LAW – Children – residence – relocation. |
| Applicant: | MR TAYLOR |
| Respondent: | MS BARKER |
| File number: | CAM669 of 2003 |
| Judgment of: | Brewster FM |
| Hearing dates: | 1 & 2 August & 6 December 2006 |
| Delivered at: | Canberra |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Miller |
| Solicitors for the Applicant: | McGuinness Eley |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
IT IS NOTED that publication of this judgment under the pseudonym Taylor & Barker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM669 of 2003
| MR TAYLOR |
Applicant
And
| MS BARKER |
Respondent
REASONS FOR JUDGMENT
This is a dispute between the parties as to the residential arrangements with respect to their child, [X]. Associated with this is a proposal by the mother to relocate with [X] to the Atherton Tablelands area of Queensland. [X] was born [in] 1997 and is therefore aged 9.
For convenience in this judgment I will use the term “contact” instead of the terminology now used in the Family Law Act of “spend time with and communicate with”.
Background
The father is 46 years of age and the mother 34. They commenced to live together in Townsville in July 1994 and moved to Canberra in October of that year. They have lived in Canberra since that time. They married [in] 1995 and separated on 21 April 1999. [X] is the only child of that relationship.
When the parties separated the father moved in with his parents. [X] remained with the mother. They established a regime whereby the father had [X] each alternate weekend from Friday afternoon until 5 pm on Sunday and each Wednesday night. Later Sunday night was added to the weekend contact.
In January 2000 the parties agreed that [X] would spend six nights in each fortnight with the father and eight nights a fortnight with the mother. This arrangement has continued since that date. In 2006, by agreement, holiday contact was included.
This litigation commenced when the father filed an application seeking orders that [X] live with the parties on a shared care regime. Whilst no mention was made of this in the supporting affidavit, I infer that this is because in January 2006 the mother had told him of her wish to move to Queensland.
The mother has re-partnered. Her partner, Mr B, lives on the Atherton Tablelands and it is this which is the impetus for the mother's wish to move there. She and Mr B have a daughter, [Y], who was born [in] 2006.
Further facts will emerge in the balance of this judgment.
The parties' proposals
As I have indicated the father seeks a shared week about arrangement in relation to [X]. The mother for her part, as I have indicated, wishes to relocate with [X] to Queensland. Her proposals in relation to contact have been something of a moveable feast, but in the end she seeks orders that the father have contact for the whole of the first and third term school holidays, for four weeks during the Christmas school holidays and for one half of the June/July school holidays. She also includes provision for contact should the father choose to visit North Queensland.
Discussion
Section 60CA of the Family Law Act provides that in making a decision in this matter I am to regard [X]’s best interests as the paramount consideration. The backdrop to this exercise is s.60B of the Act which sets out the objects of the Act insofar as it deals with children and the principles underlying those objects. The section is as follows:
(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 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 to 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 the right to enjoy their culture (including the right to enjoy their culture with other people who share their culture).
Section 60CC sets out a number of matters to which I am to have regard in determining what is in [X]’s best interests. I will discuss this later in this judgment.
Given that this case involves a relocation proposal I must bear in mind the guidelines set out by the Full Court of the Family Court in A v A Relocation Approach (2000) FLC 93-035. I summarise those which apply to this case as follows:
a)The best interests of the child are the paramount consideration but are not the sole consideration. In particular, rights of freedom of movement are not to be ignored.
b)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed, neither party bears an onus; that is to say neither parent has the onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
c)The reasons for a parent wishing to relocate with a child is only one of the matters to be considered and it should not be dealt with as a separate issue.
d)I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
e)I am to indicate which matters are of greater weight and explain how matters balance out.
I turn now to Section 60CC.
The section sets out a number of matters to be considered when assessing what is in the best interests of a child. It divides these into primary considerations and additional considerations. The primary considerations are set out in subsection (2). It refers to the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from exposure to abuse, neglect or family violence. The second of these does not apply in this case. In relation to the first were [X] a very young child it could be cogently argued that contact of the type proposed by the mother would not be conducive to his having a meaningful relationship with his father. However[X] is some nine and a-half years of age and, in my opinion, he will continue to have a meaningful relationship with his father even if face to face contact is confined to school holiday periods.
I will now turn to subsection (3) which sets out the additional considerations.
Paragraph (a) of that subsection requires me to consider any views expressed by the child and any factors (such as his maturity or level of understanding) that I think relevant to the weight that should be given to those views.
The Court has had the assistance of a report prepared by a Family Consultant with the Family Court of Australia, Ms Daphne Dawson. Ms Dawson reports as follows:
[X] expressed interest in moving to Queensland although he has experienced a close relationship with each parent. He was questioned on various options of his father leaving instead of his mother, for example. It became clear that [X] needs to be with his mother regardless of where she resides. He also expressed interest in and protection for his unborn sister.
[X] whilst realising he would miss his father and grandparents was clear he wanted to move to Queensland with his mother. He looks forward to a closer relationship with his maternal extended family and grandparents. He seemed content to spend all school holidays with his father and his family. He explained that he would have weekends with his mother's family so did not need holiday time as well.
The difficulty I have with evaluating [X]'s wishes is he had no point of comparison to assist him in coming to a reasoned decision. His experience of North Queensland has been confined to brief visits. He has never experienced living there or living with Mr B. However I do take them into account to the extent that he has not expressed any objection to moving to North Queensland and views with equanimity the prospect of his contact with his father and with his father’s family being confined to school holidays. In this context they do assume some significance.
Paragraph (b) requires me to consider 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).
It is clear from all the evidence and from Ms Dawson's report that [X] has a strong relationship with both his parents. I infer from
Ms Dawson's report however that she believes that his primary attachment is with the mother. This is scarcely surprising as the mother has been the parent most involved in his upbringing since his infancy.
The father's mother, father and sister live in Canberra and it is clear that there is a close relationship between [X] and these people. This is again not surprising as he sees a great deal of them when he is with his father.
The mother's mother lives on the Atherton Tablelands. She also has a sister there. [X] has not seen a great deal of these people, but I have no reason to believe there is other than a satisfactory relationship between him and them. The mother has another sister in Canberra and the same comment applies.
Paragraph (c) refers to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
The mother was criticised by the father's counsel for failing to demonstrate such a willingness and ability. This was because of her proposal to move to North Queensland. I regard this criticism as somewhat harsh as there are all sorts of factors impinging on her decision to relocate. It would be unrealistic to expect her to put aside her own natural wish to live with Mr B and have only regard to the advantages of her remaining in Canberra and [X] continuing to see a great deal of his father. Since separation she has encouraged contact between [X] and his father and has agreed to significant extensions to the original contact arrangement. I am satisfied that she has a willingness and ability to facilitate and encourage a close and continuing relationship between [X] and his father.
Paragraph (d) requires me to consider 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 parents; or
ii)any other child, or other person (including any grandparent or other relative of the child) with whom he has been living.
This is a very significant aspect of the case and I will return to it later in this judgment.
Paragraph (e) refers to 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 goes without saying that if the mother relocates with [X] to North Queensland, there will be a significant difficulty and significant expense in effecting contact between [X] and his father. I add that it was submitted that the mother’s proposed orders, which would permit her to arrange for [X] to travel unaccompanied by air for contact was a relevant factor. I am satisfied that the mother in fact would not do this until she was satisfied that [X] would have no problem with such travel.
Paragraph (f) refers to 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.
I have no reason to doubt that each party is capable of providing for these needs and I have no reason to believe that the father's parents are unable to do so.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child or of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant. The mother and Mr B are of the Muslim faith and the mother is raising [X] in this faith. However this was not made an issue in the case.
Paragraph (h) refers to Aboriginal and Torres Strait Islander children. It is not applicable.
Paragraph (i) refers to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. I have no criticism of either parent in this respect.
Paragraph (j) refers to family violence, and paragraph (k) to any family violence order in force. These paragraphs are not applicable.
Paragraph (l) requires me to consider whether it would be preferable for me to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. I do not think that any one order I make will be more or less likely to lead to further proceedings than any other order.
Paragraph (m) requires me to consider any other fact or circumstance that I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
Subsection (4) of s.66CC requires me to consider the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities as a parent. It sets out a number of matters to be taken into account. I have no criticism of either parent in regard to any of those matters.
I will now deal with the issue of relocation by persons other than the mother.
There are two ways in which the mother and Mr B could live together, but [X] spend half the time or a substantial amount of time with his father. They would be if his father were to relocate to North Queensland or if Mr B were to relocate to Canberra.
I am satisfied that it would be unreasonable to expect the father to relocate to North Queensland. He is self-employed as a [tradesman] in Canberra and much of his business involves word of mouth referrals. He would have to start afresh in North Queensland. Further, all his family live in Canberra.
Mr B's position is not quite so clear cut. He has, so far as I am aware, lived in the Atherton Tablelands area all his life, and indeed he and the mother met there some years ago prior to them forming a romantic relationship. He has two children of his former marriage aged 9 and 7,living in the area, and is engaged in litigation in the Federal Magistrates Court in Cairns in which he is seeking orders that these children live with him and their mother on a week about arrangement. He is employed in the Atherton Tablelands as a [occupation omitted] and has worked there for 17 years. However in 2005 he left the Atherton Tablelands area for some months. This involved his not seeing his children for some considerable time. He spent part of this time in Canberra. At that stage he was contemplating relocating to Canberra. Ultimately he decided this was not what he wished to do.
Counsel for the father submitted that I could, and should, resolve the matter on the basis that Mr B could relocate to Canberra. Essentially, as I understand it, his argument was that, whilst Mr B’s children might be adversely affected by his contact with them being confined to school holidays, their best interests are no concern of mine. Further it is apparent that his peregrinations in 2005 showed a somewhat casual attitude towards his children.
I do not see it in such simple terms however. I do not think it would be appropriate of me to engage in some form of "social engineering" and attempt to force Mr B to come to Canberra by denying the wife the opportunity to relocate to where he lives. There are good reasons why he wishes to remain in the Atherton Tablelands area. He has secure employment there and may not be able to obtain comparable employment in Canberra. That is where his children live. Whilst it appears, on the material that I have available to me, that Mr B’s application for shared residence may be somewhat ambitious nevertheless I infer that he, like Mr Taylor, is understandably reluctant to be in a situation whereby there is a substantial distance between him and his children. Notwithstanding his actions in 2005 I accept that he loves his children. In the end all I can say is both Mr Taylor and Mr B have sound reasons for not relocating and I do not propose to resolve the case on this basis.
The choices I am faced with in this matter are as follows:
a)Making orders for a week about arrangement as sought by the father.
b)Making orders which maintain the status quo whereby [X] spends eight nights with the mother and six with the father each fortnight.
c)Making orders that [X] live with the mother and have contact with the father during school holidays. This would, of course, permit her to relocate to North Queensland.
I propose to make an order in this case that the parties have equal shared parental responsibility for the child. In the end I did not understand this to be opposed by the mother. I point out to the parties that this involves a positive obligation on their part to consult in relation to long term issues concerning [X]'s upbringing and to make a genuine attempt to reach a joint decision in relation to these matters.
Making such an order brings into play s.65DAA of the Act. To paraphrase this section, it provides that if I am to make an order for equal shared parental responsibility, I am to consider whether the child spending equal time with each of the child's parents would be in his best interests. It goes on to provide that if I were to decline to make such an order I must consider whether the child spending substantial and significant time with each of his parents would be in his best interests. I need not explain what "substantial and significant time" means except to say that the regimen which presently applies fits within its definition.
Given that the father has made an application for shared residence I would be considering whether that is in [X]'s best interests, irrespective of s.65DAA. Also, in the context of this case, I would be considering whether I should make an order providing that [X] spend substantial and significant time with the father, irrespective of that section. However it appears from the recent Full Court case of Goode that this section is not merely stating the obvious and that a consideration of shared residence is a consideration “tending to a result”, that is tending to the result of making such an order. For present purpose I will assume that the Full Court intended that shared residence be the preferred result unless countervailing matters indicate that it is not in the best interests of a child. However Goode was not a relocation case. As I have indicated, I am faced with three possible types of orders, and my task is to determine which of those orders it is appropriate to make. Section 65DAA has to be seen in this context and the consideration as to whether an order for shared residence or for substantial “contact” is in the best interests of the child has to be made in this context.
Were it a choice between retaining the status quo and advancing to a week about arrangement I would have retained the status quo. For this purpose I am prepared to accept that Ms Dawson has made it clear that [X] needs his mother. While there is not much difference between an 8/6 arrangement and a 7/7 regimen I do not believe that extending the period he spends with his father to week about would be in his best interests. Absent the relocation proposal I would be satisfied that his best interests would be served by retaining the status quo.
The advantages of maintaining the status quo as opposed to making orders as sought by the mother are obvious and very significant. Throughout his life [X] has had a significant involvement with his father and with his extended paternal family. For some time now he has spent a substantial part of his time with these people. Moreover the advantages of his remaining in Canberra go beyond a simple consideration of the time he can spend with his father and extended family. Being in Canberra also enables his father to continue his involvement with [X]'s school, in that he can attend sporting events, school functions, and parent teacher evenings. He can be involved in the homework that [X] is set and would continue to have a complete involvement in [X]'s life. Confining his time with [X] to holidays is obviously a substantial and detrimental change to [X]'s life. Furthermore [X] is well established in Canberra. He has lived there all his life. He is established in his school and all his friends are here. I have little doubt that he would adapt to the change to Queensland but nevertheless these are relevant considerations.
The advantages of the mother and [X] living in Queensland are that he would see a good deal more of his maternal family and perhaps in time his relationship with these people would be as close as his relationship with his father's family. Another advantage is the mother would have the support of her mother and sister. She does have a sister in Canberra who is able to provide support to some degree, but that sister has a child with emotional difficulties and this affects the extent to which she can be involved in the mother's life. The mother's mother can and has travelled to Canberra from time to time to help her daughter out, but again this is not the same as living in the same area.
By far the most significant matter in the mother’s case however concerns her happiness and contentment. She is in love with Mr B and wants to marry him. She wants to share her life with him. She has a child by him and wants to share the joys of parenthood with him. I imagine she sees this as her chance of future happiness. The corollary of this is that I infer that, were she forced to remain in Canberra without Mr B, she would be unhappy and resentful. To a significant degree the happiness and contentment of [X] depends on the happiness and contentment of his mother.
It was urged on me that I should have regard to the risks involved in permitting the mother to relocate. It was pointed out that an arrangement whereby [X] lived in a family consisting of him, his half sister and Mr B is untried. This is true. It was also pointed out that were Mr B to succeed in his application for shared parenting of his children, the impact of their introduction into the household would be an unknown. This is also true. However I do not propose to take these matters into account. Whilst there are risks that the dynamic might not work out, there are also prospects that [X] would be able to settle into a happy and contented family or perhaps a blended family, which would be to his benefit. Overall I am unable to determine that the risks involved are greater than the potential benefits involved.
In the end have decided that the benefits to [X] in permitting his mother to relocate with him to North Queensland outweigh the detriments involved. That is, I regard the issue of her happiness and contentment, and the corollary of her being unhappy, discontented and resentful if she were prevented from relocating, as being of more significance in all the circumstances than [X]’s continuing to see a great deal of his father and extended family and the other matters to which I have averted. I am satisfied that it is in [X]'s best interests that his mother be permitted to relocate to North Queensland. I take into account, in coming to this conclusion, [X]’s age and the views expressed by him, as discussed in paragraph 18.
I propose to make orders more or less in accordance with the mother's Minute of Orders Sought, and I request that her solicitors email my associate a copy of that Minute to serve as a template. That is not to say that I intend to make all the orders she seeks. The pressure of producing this judgment by Christmas, as I had undertaken, precludes me from considering the minutiae of the Orders. I do not propose to take out orders until the New Year. I am conscious of the fact that it is unsatisfactory to hand down a judgment so close to Christmas as the rules in relation to time for appeal make no allowance for the shut down in the legal world that occurs at this time. The time for an appeal will not commence to run until my orders are taken out.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Brewster FM
Associate:
Date: 22 December 2006
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