Thurston and Varney
[2014] FCCA 375
•15 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THURSTON & VARNEY | [2014] FCCA 375 |
| Catchwords: FAMILY LAW – Parenting – relocation – mother seeking to relocate to (omitted) – ability to maintain the child’s relationship with the father – meaning of ‘reasonably practicable’. |
| Legislation: Family Law Act 1975 |
| Goode & Goode (2006) FLC 93-286 Paskandy & Paskandy (1999) FLC 92-878 MRR & GR (2010) 240 CLR 461 Taylor & Barker (2007) FLC 93-345 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR THURSTON |
| Respondent: | MS VARNEY |
| File Number: | MLC 8340 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 27 & 28 February 2014 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Puckey |
| Solicitors for the Applicant: | Faram Ritchie Davies, Shepparton |
| Counsel for the Respondent: | Mr D McLeod |
| Solicitors for the Respondent: | Stringer Clark, Warrnambool |
ORDERS
The mother and father have equal shared parental responsibility for X born (omitted) 2005 (“the child”).
The child live with the mother.
That each party be and are hereby restrained from changing X’s primary place of residence from the (omitted) municipality without the express written consent of the other party or by Court order.
The child spend time with the father as follows:
(a)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday or otherwise agreed between the parties.
(b)For half of all school holiday periods as agreed, and in default of agreement, for the first half in all odd numbered years and the second half in all even numbered years.
(c)On the child’s Birthday each year for a minimum of two hours should the Birthday fall on a school day and for a minimum of 5 hours should the Birthday fall on a non school day.
(d)On the father’s birthday each year for a minimum of two hours should the birthday fall on a school day and for a minimum for 5 hours should the Birthday fall on a non school day.
(e)On the Father’s Day weekend each year from 7.00pm on the Friday preceding Father’s Day until 7.00pm on Father’s Day.
(f)That should Mother’s day fall on a weekend when X would be with the father pursuant to these orders then “time-with” be suspended during that weekend.
(g)On Christmas as follows:
(i)From 3.00pm Christmas Day until 3.00pm 26 December in 2014 and each even numbered year thereafter; and
(ii)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2015 and each odd numbered year thereafter.
(h)At such other times agreed between the parties in writing.
IT IS NOTED that publication of this judgment under the pseudonym Thurston & Varney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8340 of 2013
| MR THURSTON |
Applicant
And
| MS VARNEY |
Respondent
REASONS FOR JUDGMENT
This application concerns the parties’ one child, X, born (omitted) 2005 (aged eight years) (“X”). I have before me the mother’s application to relocate with X from (omitted) in northern Victoria to live in (omitted), in South Western Victoria. The travel distance between the two towns is six hours by road.
The parties commenced living together in 2001 and separated in March 2008. There are no extant orders in respect of X who has habitually lived with the mother usually in (omitted) and spent each second weekend with the father.
The mother is 30 years of age. The father is 29. He lives in (omitted) which is about 45 minutes from (omitted). He is employed as a (occupation omitted). The mother has worked in (omitted) and in (omitted). Both parties have re-partnered. The father is in a relationship with Ms N. She unfortunately suffers from multiple sclerosis. She has two children aged seven and five years. During 2010 the father worked in (omitted), but continued to travel to see X every second or third weekend.
The mother has re-partnered with Mr B. He also has two children and they live primarily with their mother in (omitted). He is a (occupation omitted) by trade.
In or about June or July 2013 the mother unilaterally relocated from (omitted) to (omitted) with Mr B and X. The evidence is that she had raised this possibility with X’s father from about January of that year but concedes that she did not receive his consent. There followed a period of some three months when X had no contact with Mr Thurston. He was obliged to bring an application to this Court which resulted in consent interim orders whereby Ms Varney returned to (omitted) pending a determination of this application. X, after having been enrolled in a (omitted) primary school, has returned to the (omitted) Primary School as from the start of this school year. Mr B apparently continues to reside in (omitted).
In or about January 2012 the mother had flagged her wish to relocate with X to Western Australia. I am satisfied, despite her equivocal evidence in the witness box, that she was then in a short-lived relationship with another man. Again, the father did not give his consent. The mother remained in (omitted) and the relationship ended.
The mother now gives evidence that she regrets the nature of her unilateral move to (omitted) in 2013 and the impact for a number of months on X’s relationship with the father. She maintains, however, that she made proposals for time for X with Mr Thurston who chose not to take up her offers.
The Mother’s Case
The mother says that she wants a “new start in life”. Her sister relocated from (omitted) to (omitted) in early 2013 and has purchased a (omitted) business. The mother has been offered employment in that business. She says that she is extremely close to her sister, although many members of her direct and extended family live in (omitted). Mr B has obtained a position as a (omitted) in (omitted). He previously owned a (omitted) business in (omitted) which he sold some months before the move to (omitted).
The mother indicates that X would be content with a move to (omitted). She initially proposed that X spend time with the father on a monthly basis, although during her evidence she moved towards fortnightly visits together with block periods in school holidays. By the time of final submissions she was favouring visits to (omitted) every three weeks. She also offers school holiday time. She says that she and X have regularly made the trip from (omitted) to (omitted) and vice versa and that he has coped well with the travel. She says that she would be responsible for the travel for X’s visits or the majority of it. She also offers the father the opportunity to come to (omitted) to spend time with X which might alleviate some travel for the child. Mr B also anticipates visiting his own children in (omitted) regularly.
The mother argues that both she and Mr B have employment in (omitted). She says that she has always been the primary carer of X and that, despite her preferences, if the Court does not accede to her application to relocate then she would remain in (omitted) as primary parent. Mr B in his evidence also indicated that he considers the relationship with Ms Varney to be a committed one and that he would return to (omitted) should the mother’s application be unsuccessful. The mother says that X’s relationship with his father will endure and in fact, did so when he was much younger and during the period his father lived in (omitted) and they had direct contact only on each second or third weekend.
The Father’s Case
Mr Thurston argues that the mother’s proposal commits X to onerous travel on weekends involving close to 12 hours by road. He says that consequently X’s time with him over weekends would be reduced and that interim arrangements have seen X extremely tired on Saturday mornings and that he is required to leave early on Sunday afternoons in order to return to (omitted). He argues that the mother’s alternative proposal of monthly time would impact negatively on the nature of the relationship between him and X by reason of decrease in frequency. He says that the suggestion that he travel regularly to (omitted) is both inconvenient and impractical given the onerous distance involved and the fact that his partner does not travel easily due to her medical condition and in any event, her own children travel to (omitted) fortnightly to spend time with their father.
Mr Thurston contends that X’s views are equivocal, although he apparently concedes that X’s preference is to live primarily with the mother.
He says that a relocation for X to (omitted) would deny him the opportunity for flexibility and spontaneity in his time with X and a loss of the opportunity to attend school and extracurricular activities (although the mother argues that he has not regularly taken up these opportunities when X was at the (omitted) school).
The Evidence
Both parties filed trial affidavits, gave evidence and were cross-examined. They each adduced evidence from their partners who were also cross-examined briefly. The Court also had the benefit of a family report prepared by Ms M who is a regular contributor to parenting cases in this Court. The interviews for her report were conducted after interim orders for the mother returning X to (omitted) but prior to them returning.
Both parties were represented by counsel at the trial which was conducted in Cobram circuit of this Court except for the evidence of Ms M which was given on a later date in Melbourne.
Credit
The father gave his evidence in a candid and child-focused manner. He appeared ready to understand and accede to the mother’s general preference to relocate from (omitted), although emphasising at all times that her proposal for X would impact both on the child and his relationship with him. He also conceded that the mother should remain the primary parent of X. Similarly, Ms N gave her evidence in an honest and understanding fashion. She appeared willing to look at all proposals for X in an objective and informed manner.
The mother’s evidence was not so candid. She understandably was at pains to emphasise and at times embellish, her own case. She was keen to criticise the father often, in my view, unfairly. She was reluctant to make admissions against interest and her evidence was consequently contradictory at times. Her evidence was in some minor points at odds with that of her own partner, Mr B. She was equivocal and contradictory in her evidence as to whether or not the father was aware of her intention to relocate to (omitted) which she ultimately agreed was unilateral and without his consent. Her evidence was also at odds with that of Mr B in respect of some unfortunate comments made by Mr B to Ms N in the waiting room at the interviews for the family report. Mr B though was honest and forthcoming with his evidence.
The Relevant Law
These are parents who have not until this stage needed to use the facilities of a Family Court in respect of their son. They separated as long ago as 2008 and have amicably parented since that time and until the mother’s current proposal to relocate. Such is often the effect of a proposed relocation on otherwise cooperative and communicative parents. The evidence suggests that the previous respect and trust between these parents has been diluted by the mother’s actions in July 2013.
This Court is obliged to make orders which are in a child’s best interests and having regard to the mandatory considerations set out in section 60CC of the Family Law Act 1975 (“the Act”). Those considerations are often amplified by factors of distance and the nature of relationships which come with a proposed relocation of a child. As the father noted in his evidence in cross-examination, one or other of the parents will inevitably be left aggrieved by the determination of the Court. If the relocation is permitted then the nature of the relationship between the child and the remaining parent will alter and blame might be attributed to the relocating parent. Conversely, if a parent wishing to relocate is denied that opportunity of freedom of movement, particularly being a primary parent, then they will often be left bitter and aggrieved. The relationship between the parents themselves suffers for want of trust and communication.
The jurisdiction of this Court in making parenting orders is provided in Part VII of the Act. The task for the Court is to make orders which, on balance of the probative evidence and the proposals of the parties is in the child’s best interests. The jurisdiction of the Court is directed at children and whilst the Court may permit or refuse a relocation of a child, it does not usually per se make orders which prevent the freedom of movement of an adult. Nevertheless, in many cases, like that now before me, the primary parent wishing to relocate will commit to remaining with the child should the relocation be refused.
The Act itself is silent as to the notion of relocation of children. In that sense, relocation is neither prohibited nor is there a presumption against it. Rather, a proposal by a parent to relocate a child, be that intrastate, interstate or internationally, is just one of the numerous considerations for the Court in arriving at orders which are, on balance, in the best interests of the child. In this sense, whilst the relocation proposal may be the major issue between the parents, a potential relocation is not to be treated separately to the overall determination of the child’s best interests. That is, there is no specific category of “relocation case”. As the Full Court in Paskandy & Paskandy[1] observed:
“there can be no dissection of the case into discrete issues, namely, a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[1] (1999) FLC 92-878
Section 60B of the Act sets out the objects and principles underlying those objects in respect of children’s matters. This provides the framework for determining a child’s best interests. That section states:
(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 60CC of the Act sets out the obligatory considerations that a Court must reference in respect of the proposals of the parties and the probative evidence given and adduced. That section provides:
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In determining any parenting orders the Court is to follow a pathway of statutory consideration confirmed by the Full Court in Goode & Goode[2]. The starting point is that there is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child[3]. Parental responsibility refers to those duties, powers and responsibilities which parents have in relation to children by way of law. Such responsibilities usually manifest in the long term and important decisions for children as opposed to day-to-day issues. Matters such as education, religion and medical procedure are often given as examples of parental responsibility.
[2] (2006) FLC 93-286
[3] S.61DA of the Act
The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence.[4] Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to exercise that responsibility.[5] In the matter now before me each parent advocates an order for equal shared parental responsibility. There are no issues of family violence which render the presumption inapplicable. At this early stage, I am satisfied that it is in X’s best interests for his parents to continue to exercise equal shared parental responsibility given that the major issue before me is whether or not the mother and X live in (omitted) or in (omitted).
[4] S.61DA(2)
[5] S.61DA(3)
An order for equal shared parental responsibility would normally obligate a Court to consider a priority of parenting regimes for a child. Firstly the Court must consider whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the child spending “substantial and significant” time between the parents is both in the child’s best interests and reasonably practicable.[6] “Substantial and significant” time is defined in the Act[7] as:
[6] MRR & GR (2010) 240 CLR 461
[7] S.65DAA(3)
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 and holidays; and
b)the time that the child spends with the parent that allows the parent to be involved: (1) the child’s daily routine; (2) occasions and events that are of particular significance to the child; (3) the time the child spends with the parents allows the parent to be involved in occasions that are of special significance to the parent.
In this matter, however, the father seeks time with X only in the traditional form of weekends and school holidays and therefore outside of either equal time or substantial and significant time. The father lives in (omitted) which is approximately 45 minutes drive from (omitted) which may remove the opportunity for flexibility and spontaneity in the relationship. This is a situation enshrined by choice of the father which the mother uses as an argument in support of her proposal to relocate X. She says that the father has not availed himself of opportunity to participate actively and fully in X’s schooling, extra-curricular activities and care and it follows that the relationship between he and X will suffer little, if at all by a move to (omitted).
There is now a long line of authority providing assistance for trial judges in extracting principles to be referenced in matters involving potential relocation[8]. Those principles have survived the judicial and academic debate following the significant changes to the Act in 2006 and can be summarised as follows:
·Relocation issues in parenting cases are to be determined in the terms of Part VII of the Act in the context of making necessary findings in respect of the relevant section 60CC factors but also within the context of the section 65DAA considerations of equal time or substantial and significant time being “reasonably practicable”;
·The best interests of the child remain the paramount but not the sole consideration;
·The child’s best interests must be weighed and balanced with the “right” of the parent to freedom of movement but such must ultimately defer to the child’s best interests;
·Neither parent carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally including the advantages and disadvantages of a re-location or may itself formulate proposals in the best interest of a child; and
·A parent wishing to re-locate a child need not provide “compelling” reasons in support of the relocation.
[8] Taylor & Barker (supra), Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (2009) FLC 93-40.
Family Report
Ms M recommends that X continue to live with the mother. This is not in dispute. Her recommendation continues, however, that they be permitted to reside in (omitted). Importantly, however, she makes this recommendation at a time that the mother and X were living in (omitted) and I infer that she places some weight in this situation when she says at paragraph 45:
X appears settled and content in his new surroundings. He indicates that it does not matter to him if he lives in (omitted) or (omitted) as long as he continues to be in the primary care of his mother and spend regular time with his father as well as maintains constant connection with him through phone calls and other internet devices. He is at an age when it is possible to make use of such communicative measures provided that the parents are willing to encourage and facilitate.
I find little further justification in Ms M’s report supporting her recommendations in support of the mother’s proposal to relocate. She does, however, report the mother’s motives for her proposals as follows at paragraph 25:
The mother explained that apart from the practical reasons, she had always dreamed about living close to the ocean. In (omitted), X was able to learn horse riding and water sports. Furthermore, she received considerable family support from her sister’s family. She informed that X was not happy in his school in (omitted) due to bullying. She stated that X was pleased after his move to (omitted) and he seemed to feel secure in the company of his caring cousins, the two sons of Ms S. The mother explained that she had the luxury of working during school hours that allowed her to take and pick up her son and nephews from school and spend time with them.
And at paragraph 24:
Further to that, her partner had obtained a job as a (omitted) in (omitted) and it was necessary for him to move there. Her sister, Ms S, had bought a (business omitted) and had offered a job for Ms Varney during mid-2013. The mother stated that she had tried to discuss the issue with Mr Thurston with a view to obtain his consent to re-locate their son, however, the father seemed totally fixed with the idea that she should never move out of (omitted). Ms Varney shared that it was unfair to expect that from her, whereas the father seemed free to work and live in other places. She spoke about Mr Thurston’s re-location to (omitted) couple of years ago before he decided to return to live in his current area.
I note that the alleged bullying of X at the (omitted) School was not explored in the evidence before me. Further, the evidence of Mr B was contrary to the implication from the family report that his re-location was necessitated by employment. Rather, his evidence was that he moved to (omitted), undertook a TAFE course to extend his qualifications and later obtained work in his previous trade as a (omitted).
Ms M reported the father’s concerns in respect of the proposed re-location consistently with his evidence to this court.
Section 60CC Factors
Primary Considerations
Section 60CC (2)(a) – The benefits to the child of having a meaningful relationship with both of his parents.
On the evidence before me, I am satisfied that X has been able to develop and maintain a meaningful and successful relationship with both of his parents by way of their informal arrangement of him living primarily with the mother and spending regular time with the father. Ms M observes at paragraph 37 of her report:
X seemed to enjoy a trusting and emotionally dependent relationship with both his parents and he was very loyal to them.
I am satisfied that X is of an age whereby he has established a bonded relationship with both parents could endure a relocation as proposed by the mother provided that he maintains regular direct contact with his father.
X’s comments to Ms M and the evidence generally make it clear that X’s primary attachment is with his mother.
Section 60CC (2)(b) – The need to protect the child from physical harm, from being subjected to, or exposed to, abuse, neglect or family violence.
It was something of an unusual pleasure to hear a case where issues of family violence were not raised save and except the unfortunate and unwise personal derogative statements made by Mr B to Ms N at the interviews for the report. To his credit, however, Mr B readily acknowledged the error of his ways and his regret. I accept that this incident was an aberration and not indicative of his behaviour generally.
Additional Considerations
Section 60CC (3)(a) – Any views expressed by X 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 his views.
X is just 8 years of age and might not normally be expected to be able to rationalise his views as to his preferred living arrangements. Indeed, the evidence from the family report suggests that he has felt pressured in his loyalties to his parents by the situation in which he finds himself. At paragraph 34 of her report, Ms M observes X as:
X (8) is in grade 2. X gave the impression of a child over-burdened by disputes running between his parents. He sat looking worried and downward with drooped shoulder as if he carried a weight on his shoulders. He described his life as “difficult”.
Mr Thurston described his son to the family reporter as:
… a highly sensitive child with a quiet and cheeky nature. He observed that X was a perfectionist, quite hard on himself and he did not want to get things wrong. He also noted that X was scared of upsetting his mother and often worried about her when he was away from her.
And at paragraph 37, Ms M notes:
He made sure that if he stated something positive about (omitted), he also made a positive remark about (omitted) whether it was in relation to the location, school or the relatives at both places. Whilst he enjoyed the novelty of being in (omitted), he also missed the familiarity of (omitted) surroundings. He missed his grandmother in (omitted) and at the same time, shared that he would miss his cousins with whom he spent time in (omitted) if he lived away from there.
At paragraph 38 Ms M reports X as:
Whilst X stated that he loved both his parents equally, he also shared that he did not wish to live away from his mother. He asked that his father accepted his mother’s decision to relocate to (omitted) happily. He asked the writer if she could make his father understand that he loved his father the same whether he lives in (omitted) or (omitted). X also stated that he related with the partner of his father and mother.
I am satisfied that X is equivocal at best in his preferences, but that he clearly wishes to live primarily with his mother. I infer importantly from the report that X wishes to maintain a regular relationship with both his parents.
Section 60CC(3)(b) – The nature of the relationship of X with each of his parents and other persons (including any grandparent or other relative of the child).
The evidence from each of the parties and consistent with the family reporter is that X has a close and bonded relationship with each of his parents. I infer from the evidence that he craves a continuing relationship with both parents. The issue for the court is whether the nature of X’s relationship with his father can be sustained on the mother’s proposal which adds an element of distance and travel obligation for X and his father to maintain that relationship. Alternatively, the relationship will alter in its nature in the sense of less frequency of time. This is the essence of the father’s concerns. It is clear that X himself sees the nature of his father’s primary attachment and relationship being with his mother, but that there is an established attachment and important regular relationship with his father.
The mother says that a relocation for X to (omitted) will not significantly change the nature of X’s relationship with his father which has always been a “weekend relationship” with Mr Thurston choosing not to deviate into flexible or spontaneous time with X.
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.
(CA) – The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
The evidence suggests that the parties themselves have reached an agreement about appropriate financial support contributions by the father for X. There is merit to the mother’s argument that the father has taken a secondary role in involvement in X’s schooling and extra-curricular activities. He has been satisfied with a traditional regime of weekend time. He has, however, attended at some parent/teacher meetings and school activities. He has been involved as a spectator with X’s football. The mother has taken the primary role in these activities for X. Further, the father apparently had no qualms in himself relocating to (omitted) in 2010 and thereby putting distance between himself and X. His argument to me now that a relocation to (omitted) would impact on his opportunity for spontaneous involvement in X’s life suffers accordingly.
Section60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect of 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), with whom he or she has been living.
X himself expressed some trepidation to the family reporter of the effect of such changes on his various relationships. The vagaries of distance suggest that a relocation to (omitted) would change the roles of the parents in X’s life, even to a subtle degree or further entrench their current, actual and perceived roles as parents. As he gets older and entrenched at school and in peer group relationships, X might face conflict between a requirement for him to travel regularly the significant distance between (omitted) and Northern Victoria with his sporting and extra-curricular activities near his home. This is a common consideration in matters involving relocation. At times, there may develop an understandable reluctance in a child to undertake the obligations of Court orders to travel to see a parent at the expense of sporting and other enjoyable lifestyle activities. The Court must, of course, consider both the short term and long term interests of the child and both short and long term ramifications of its orders.
Section 60CC(3)(e) - the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain person relations and direct contact with both parents on a regular basis.
Ms M comments on the practical difficulties of the mother’s proposal at paragraph 50 of her report: The writer is of the view that the interim orders of fortnightly visits are not suitable to X’s needs in the long run as he will be in the car for 12 hours each fortnight. Even the father recognises that it would be very tiring for his son if practised on an ongoing basis. The mother informs that she does travel regularly between (omitted) and (omitted) and that X copes with the travel, not unusually in her evidence general, however Ms Varney presented contradictions to the Court. Suggesting a tendency towards selective evidence to shore up her arguments when the need might arise. Here, she gives evidence in Court that travel between (omitted) and (omitted) on a regular basis would not be problematic for X or the parents. However, a letter written by her to the father announcing her unilateral relocation of the chid in July 2013 paints another picture when she writes;
I still want you to have access with X on a regular basis but due to travel distance I propose the following access with X.
1. 1st week every school holidays to commence on Saturday 12 noon;
2. Alternative Christmas/New Year for up to 2 weeks, or as we have arranged in the past. 24 December 12 noon to 14 days after at 12 noon.
3. and any other time agreed between both of us.
4. We will meet halfway at own costs.
5. (omitted) to (omitted) is 420 kms (5 hours and 50 minutes).
I believe every second weekend would be to (sic) longer (sic) travel on X and us both.
There is agreement between the parties that the travel time between (omitted) and (omitted) is close to six hours in each direction. As such, 12 hours of travel for a child over a weekend would undoubtedly be both onerous and tiring, as well as reducing the enjoyable time available between X and his father. Whilst the mother is ambitious in her proposal and confident that she could successfully travel with him fortnightly, I agree with Ms M that there are serious questions as to the long term durability of such a regime.
Section 60CC(3)(f) - the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.
Both parents seem to have accepted the regime and roles that they agreed from 2008. Each appears, on the evidence, to have discharged those roles satisfactorily as evidenced by the good relationship that X has with each of them. The only issue with the mother’s capacity is in her lack of insight in unilaterally relocating X from a settled environment and from the physically close proximity to the father. My observations of the mother in the witness box and from listening to her evidence, do not convince me that she has now gained that insight. I am left with the lingering suspicion that the mother’s relocation was for personal preferences (as evidenced by her repeating that she preferred to live by the ocean), rather than a considered and objective consideration of X’s short and long term best interests.
The evidence also highlighted some concerns as to her undertaking of and willingness to encourage X’s relationship with his father. Such matters are of great importance where the relocation of a child places distance between parent and child and frequency and regularity of direct contact is often reduced. The mother in this case unilaterally relocated X. She enrolled him in school, at (omitted) without any reference to the father. She permitted X to refer to Mr B as “dad”. Such factors can be contra indicators of encouragement of a relationship with the remaining parent.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
This consideration has been dealt with above.
Section 60CC(3)(h) – if the child is an Aboriginal child or Torres Strait Islander child.
Not relevant
Section 60CC(3)(i) – the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
The father has clearly been content to delegate the role of primary carer to the mother. The mother has embraced this role. This is not necessarily a criticism of the father in that these parents, by way of reaching an agreement, have enabled X to be settled in his life and relationships with each of his parents.
The mother’s attitude is arguably compromised by her unilateral relocation in 2013. The result was an unfortunate period of three months where there was little or no contact between X and his father. It may be, on the evidence, that each of the parents was partly culpable in this regard and at a time when each of them was intent on establishing their tactical positions in anticipation of court proceedings.
Section 60CC(3)(j) and (k) – issues of family violence and family violence orders;
Not relevant.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child.
By its very nature, a relocation raises prospective unknowns for the parties and children. If the relocation is permitted then it is unknown if the mother will be comfortable in her new environment. It is unknown whether her ambitions will be realised. The father emphasises that this is a mother who relatively recently raised with him the possibility of a relocation to Western Australia. He says that her current relationship is not yet of any longevity. I am asked to infer that there is a possibility of further litigation by reason of the mother’s transitory habits. Conversely, however, if the mother is required to remain in (omitted) by reason of refusal of the application to relocate X then she will be there contrary to her own preferences. She will be denied what she might understand to be an adult right of freedom of movement. The result may well be discontent and unhappiness and may itself give rise to further litigation.
It is for these parents, like any coming before these Courts, to understand that the Courts do not attempt to provide optimum or ideal solutions or orders. The Court is provided with a recipe which is, by definition, imperfect. It is for the Court to determine orders which are best for X within the particular factual platform and for the parents then to move on to parent their child armed with orders and reasons of the Court.
Discussion and Conclusions
Like virtually all applications involving a potential relocation of a child, this is a complex and difficult matter for the court’s determination. Each of the party’s proposals and the evidence they have given and adduced have some merit.
The mother is and has always been the primary parent of X. She is an adult trying to get on with her life. It is understandable that she wants to “start a new life”. She is entitled to think this way and to argue that as a primary parent, she should have reasonable freedom of movement provided that she can maintain X’s successful relationship with his father. She has employment in (omitted) via her sister’s business. Her partner has employment in (omitted). She argues that the father himself has enjoyed freedom of movement post-separation, evidenced by his move to (omitted) for a period. She says that X’s strong and established relationship with his father suggests that the child will successfully adapt to the relocation and that the relationship between child and father will endure. She had the benefit of living in (omitted) albeit only for a number of months and observes that X easily settled. She has had the benefit of travelling regularly with X and has seen no adverse effects and hence is confident that travel between (omitted) and (omitted) on a fortnightly or three-weekly basis is viable. I place some weight on all of these matters raised by the mother. She says that the previous nature of the roles of each of she and the father as parents means no significant change for the relationship with X and his father.
The father also mounts strong arguments. He says that the travel obligations would be onerous and perhaps even prohibitive in the long term for X. He argues that near 12 hours of travel over a weekend to be both unsustainable and of significant impact on the quality time available to father and son over a weekend. He says simply that the mother provides no reasons in X’s best interests for the proposed move rather only her own lifestyle preferences. He says that X has established relationships with friends, at school and with extended family in (omitted) and that these would be negatively impacted by the mother’s proposal.
The advantages for X on the mother’s proposal are that she wants to be happy in pursing her lifestyle preference. I accept a vicarious benefit for a child living with a content parent. There is however no evidence given or adduced by the mother of manifest unhappiness or negative impact on her parenting when in (omitted). In this sense, “happiness” is contextual.
A second advantage for X living in (omitted) is that he can pursue his relationships with his aunt and cousins. This relationship can be continued on a holiday and weekend basis and is no more significant for him, on the evidence, than with his relatives in (omitted) and certainly not as significant as his relationship with his father.
The mother and Mr B can provide financially for X in (omitted) where they both have employment. I am not satisfied however that they don’t have skills easily applicable in (omitted). This is not a situation where the proposed relocation is fundamentally based on a discreet and beneficial employment opportunity.
The father’s proposal also offers a number of advantages for X over that of the mother. It provides him with more frequent time with the father. It offers the opportunity for other involvement with X’s school and sporting interests, it alleviates the need for twelve hours travel each third weekend. It removes the potential conflict for X between compliance with onerous Court orders and pursuing his own sporting and social interests. It alleviates the need for yet another move for a child who I infer from Ms M’s report is one who wants to be secure in his life and relationships. It allows him to continue his longer relationships with his friends in (omitted).
Ms M recommended that X live with his mother in (omitted). The interviews for the Family Report however took place at a time when X was living in (omitted) with the mother. Ms M emphasised the child being settled but that he was otherwise ambivalent as to his preference for (omitted) or (omitted). He has now settled back in (omitted). The logic of Ms M’s recommendations must be viewed accordingly. Further, Ms M maintained her concerns as to the unsuitability of fortnight travel for X between (omitted) and (omitted) although I now note the mother has compromised between her previous proposals of monthly and fortnightly at three-weekly.
Whilst it is true that a primary parent wishing to relocate a child need not show “compelling reasons” for doing so, they must show some reasons or sufficient probity in the balancing process. In this mater I am satisfied that the mother’s reasons for wanting to move to (omitted) are mainly subjective and preference based. Whilst I have sympathy for her wish to be able to move freely with her child for whom she has taken on the primary parent role in the real sense of the term, I am satisfied that disadvantages for X set out above outweigh the advantages. I am satisfied therefore that X’s best interest are served by him living with his mother but in (omitted) which is, of course, a reasonably practicable option. I harbour concerns as to the other option being “reasonably practicable” on both a long term and cost benefit basis.
I am satisfied that X’s best interests are served by him living primarily in the mother’s care but in (omitted) and thereby proximate to the father and that such a proposal is reasonably practicable.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 15 April 2014
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Family Law
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