TROY & TROY
[2012] FMCAfam 118
•10 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TROY & TROY | [2012] FMCAfam 118 |
| FAMILY LAW – International relocation – urgent application – consideration of urgency – incomplete evidence – exercise of discretion – interim or final orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA |
| Cowley & Mendoza [2010] FamCA 597 Marshall & Marshall [2012] FMCAfam 47 C & S [1998] FamCA 66 Re C & J (1996) FLC 92-697 MRR v GR [2010] HCA 4 AMS v AIF [1999] HCA 26 U & U [2002] HCA 36 Fellowes & Murphy [2011] FamCAFC 242 |
| Applicant: | MR TROY |
| Respondent: | MS TROY |
| File Number: | MLC 6922 of 2009 |
| Judgment of: | Coates FM |
| Hearing dates: | 16 & 17 January 2012 |
| Date of Last Submission: | 17 January 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 10 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A James |
| Solicitors for the Applicant: | MCG Legal |
| Counsel for the Respondent: | Ms J Hogan |
| Solicitors for the Respondent: | Septimus Jones & Lee Lawyers |
PROPOSED ORDERS
That until further Order the child, [X] born [in] 2005 be restrained from leaving the Commonwealth of Australia.
That each party, MR TROY born [in] 1968 and MS TROY born [in] 1967 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said child [X] born [in] 2005 from the Commonwealth of Australia.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until the Court orders its removal.
That this order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 12 of the Family Law Regulations).
That unless otherwise agreed by the parties in writing, the mother is restrained from relocating the child, [X] born [in] 2005 to a place outside the Commonwealth of Australia.
That unless otherwise agreed by the parties in writing, the mother is restrained from relocating the child, [X] born [in] 2005 (“the child”) from the Gold Coast, in the State of Queensland.
The father is to take all necessary steps to create a trust account for the education of the child, accessible by both parties, in the sum of $6,000 and provide the particulars of same to the mother within 28 days of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Troy & Troy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
MLC 6922 of 2009
| MR TROY |
Applicant
And
| MS TROY |
Respondent
REASONS FOR JUDGMENT
Parenting orders for the child [X], born [in] 2005 (the child), were made by consent on 5 November 2009.
Those orders imposed equal shared parental responsibility between the parents but that the child live with the mother except between 8.30 am Monday to 3.00 pm Wednesdays, when she would live with the father.
Holiday time orders were made whereby the child spend two weeks over Christmas with the father until she started at school and then shared holidays were to begin. The child began her prep year in 2011.
Other orders were made for special days.
Relevantly, there is a specific order which states: “If either party intends to relocate to another place that the party shall provide the other with written notice of the intention to relocate at least two (2) months prior to the intended date of departure, to allow time for the other to make an application to this court in the event of objection being taken”. Although not brought to my attention by the parties, this is a relevant issue because of the timing of the Initiating Application and an obvious consideration at an earlier time of possible relocation issues arising. I need to return to this issue.
But for the application being filed according to the specified time in the consent orders, the other orders have been implemented, with apparently a lot of good willed flexibility.
The matter has returned to court because the mother wishes to relocate the child to Kuching, the capital of the eastern Malaysian state of Sarawak, on the island of Borneo. The father would remain in Australia.
The matter came into court as an urgent matter because the parents could not agree on the relocation and the mother has an employment opportunity which will expire by March 2012.
A first return date was set for 6 December 2011. During brief explanation of the matter, there was no application for any independent evidence from either a family consultant or an Independent Children’s Lawyer (ICL), given, I suppose, what was said to be the requirement for an urgent hearing. It almost goes without saying that an international relocation usually requires independent evidence for proper conduct and consideration of the matter.
I set an urgent date for hearing over the January court stand down period on 16 January 2012. On that day I heard evidence, but during my preparation for the trial I determined that at least a family report would be of assistance, if one could be arranged because January is still the Christmas holiday period. Given the short lead up time to the trial, it was probably not possible for an ICL, even if able to be appointed, to have enough time for independent assessment of the case. I have concerns about the manner in which the urgency arose, but to decline to deal with it would step away from an important responsibility.
I was able to organise a report on an urgent basis but the family consultant indicated to my associate that she could only interview the parents and the child, otherwise she could not complete the report. I informed the parties of that position.
On providing the report to the parties, I was then able complete the hearing 30 January 2012.
The family report had two recommendations, that the mother be allowed to relocate the child and if such an order was not made, then a change to the times she spends with the father as he sought in his application.
THE PROVISIONS OF THE FAMILY LAW ACT 1975
Relocation cases are decided upon the same principles applied to all parenting cases under the Family Law Act 1975 (the FLA), however the reality is that very particular and sometimes extraordinary problems can arise, especially for the international relocation of a child.
Section 60CA of the FLA states the test to be applied and that is that any parenting order must be made in the best interests of the child as the paramount consideration.
The FLA then sets out the primary considerations at s.60CC(2) which are the benefit to the child of a meaningful relationship with both parents and protecting the child from neglect, abuse or family violence or other harm. If I make those considerations the primary ones that is in accordance with the objects and principals stated at s.60B of the Act.
Sections 60CC(3), (4) and (5) state the additional considerations which should be addressed in order to arrive at the best interests decision. While referring to the evidence I will refer to any particular consideration by a reference in square brackets so the parties can follow the reasoning. I will also point out that multiple considerations can apply any specific factual situation.
I am to apply the presumption of equal shared parental responsibility and determine whether such exists or does not exist because of family violence or because it should be rebutted on other evidence [s.61DA].
If I make an order for equal shared parental responsibility I must consider the living arrangements under s.65 DAA and consider whether a shared care arrangement or a significant and substantial time arrangement or any other arrangement is in the child’s best interests.
Shortly I will refer to the authorities which make sense of the blandly stated legislative provisions indicating how all of these considerations apply to the particular evidence of this matter.
PROPOSALS
It is the father’s application to prevent the relocation and it is his further application to amend the current orders so that the child spends four nights a fortnight with him, Friday to Tuesdays in every second week.
He also seeks orders for special days, telephone time and changeover, although there was no concentration on these issues during cross-examination and in fact, on the evidence, there was no real concern about these issues.
As to any relocation in the future, he wanted either party to give the other at least two months notice to allow for an application to the court.
If the mother was to leave Australia for employment, he sought that the child live with him.
He also wants the child’s passport held by the court registry.
The mother seeks orders that the child live with her and that she be permitted to relocate the child to Kuching for the duration of a contract with the [organisation omitted] from March 2012 until 2015.
She proposes that the child spend time with the father four times a year in Kuching and she will pay for his air fares until he gets full-time employment.
She also proposes that the child spend time with the father in Australia for half the Sarawak school holidays from November to January each year and she states the school holiday dates for Sarawak. She proposes that she pays the child’s air fares to and from Australia and that she or a maternal relative accompany the child.
The mother’s orders make arrangements for Skype and other technological methods of communication.
Both seek equal shared parental responsibility.
BACKGROUND
The mother was born in Singapore and held Malaysian citizenship. Her father hold’s Malaysian citizenship. She now holds Australian citizenship and I was a told she does not hold duel citizenship. The father was born in Melbourne and is an Australian citizen.
The parties married in 1992.
The parties have lived in Adelaide, Cairns and Melbourne and were resident on the Gold Coast at the time of hearing.
In 2008 the parties were living in Melbourne when the mother was offered employment as a [occupation omitted] at the [organisation omitted] on the Gold Coast. Their evidence was that they then planned to relocate to the Gold Coast, although the mother would go first to settle into her new employment, leaving the child in the care of the father. Just before he got there, in December 2008, she informed him the relationship was over.
However, there was agreement that the father move to the Gold Coast and he actually lived in the mother’s new residence for seven months before establishing himself with employment and accommodation. He moved out by July 2009 and in August 2009, the mother commenced proceedings for parenting and property orders. The proceedings were precipitated, it seems, by the holding over of the child by the father assisted by his family. I have no clear evidence from the parents as to the time the child was with the father while the mother settled into her position on the Gold Coast or the time she spent with the father and his family in August 2009. However, all of the evidence indicates that the child was not affected emotionally from these events and has a connection with both parents. Further, the parents were able to arrive at orders by consent a short time later, on 5 November 2009. This history indicates by their actions that both parents want that direct attachment with the child as they purport in their sworn evidence.
The father is employed part-time as a [occupation omitted] at the [organisation omitted].
EVIDENCE
The mother’s employment ended in June 2011 due to a restructure at [organisation omitted], although she said she was aware that as early as March of changes and she had begun looking for employment and had told the father in April of her job search.
She said she was “prioritising” Melbourne as her preferred destination however she would look in south east Asia if unsuccessful.
She said she advised him to also secure his own financial position, but stated that he said he would wait until he knew where she was going.
The background to these assertions are that the father did not contribute to the child’s financial support and did not earn a great deal of money, the first contention being rejected by the father. On the evidence regarding expenditure, the mother does supply the major financial support to the child.
There is a relevant email dated 2 May 2011 from the mother to the father indicating that there may be a job offer in Bali but that “I have not proceeded with an interview at this stage as I have been waiting to resolve my discussions with you on the possibility of relocating to Bali with [X]”. The email further states that she would widen her search to Singapore, Malaysia and Thailand.
That email also indicates that the mother may change employment from the [industry omitted] to the [other] industries.
The mother gave evidence that she had attempted to get employment in her field in Australia through employment agencies and by forming her own company, but all efforts have been unsuccessful.
She said in August 2011, she was contacted by and arrangements were made for an interview with the [organisation omitted] at Kuching, Malaysia and she travelled there from 12 to 16 September for the interview.
She said she informed the father and he agreed, verbally, to the move, although it was not ideal for the child to be away from her father.
The father did not refer to any agreement in his affidavit – although he said until he received an email from the mother on 30 September 2011, he did not believe she would go. In cross-examination, it became apparent that he did consent but that he changed his mind.
It also became apparent to me, and I accept and find, that the father is a person who does not like to cause fights with the mother as he put it, that the mother has a very strong personality and that the father was overwhelmed by the gravity of the situation facing him. The father did not begin objecting until he discussed issues with his family. In saying that I am not in any way critical of the mother, or in fact the father, it is just the nature of their personalities as they came across to me on hearing them and observing them giving evidence. But the nature of their personalities has to be taken into consideration in the best interests decision, because the competing cases also need to be understood from the personal perspectives when assessing the evidence.
The mother’s evidence as a whole, both in what she states and in the correspondence to the father, makes it inevitable that as a finding of fact her main reason for moving would be to attend to a financial future for herself and the child. While stating that she recognises the value of the relationship between the child and the father [s.60CC(2)(a)] she relies on the history that she provides the major financial support for the child, that is a reliance on the capacity to provide for the child materially [s.60CC(3)(f)] and a consideration of her approach to the responsibilities of parenthood [s.60CC(3)(i)]. In many senses, she is saying that she is and has been the parent who has been primary carer and that the bond of the child is with her [s.60CC(3)(b)].
Two witnesses, Ms J and Mr S, whose expertise in employment in the [industry omitted] was not questioned, gave evidence supporting the mother’s attempts to get employment. Both gave evidence of the mother’s competence in her job and both seemed to say that she could not presently obtain another job in Australia at her level of skill. It was put that she could take a lesser position, which I suppose is always the case, but the evidence was that employers would not be willing to employ her at a lesser role because she would probably leave when a higher position became available.
While living off her redundancy monies, it is not challenged that she has been the main financial provider for the child.
The father’s evidence as a whole is that he wants to have a relationship with the child and that he would not object to the mother relocating within Australia, because he would be prepared to follow her to pursue that relationship. It is his evidence that he probably could not live or work in Malaysia.
There is an issue that Malaysia is a country which is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, although the father does not really believe that the mother would not return to Australia. In stating that, the father said he has a residual fear about that issue and about safety generally in Malaysia as the mother is Catholic and would be living in a predominantly Muslim society.
It is clear from the family report that the report writer formed a view in line with the mother’s case as to financial support for the child and bonding, however, the father said in his affidavits, not denied by the mother, that he cared for the child when she left for Queensland and that his part-time work allowed him, in her earlier years, to be at home. But the issue is not as simple as that. During questioning, I sought an opinion from the mother as to the relationship between the child and her father. The mother described what I would classify as a wonderful relationship with the father. Questioning went:
“How do you think a separation, as you propose, would affect her?---She will miss him and he will miss her.
All right. That would be the reaction. How will she be affected?---I think she will miss him and he will miss her, but I guess looking at her, she’s a beautiful, bright, intelligent child and luckily for me she spends the majority of her time with me and so I think my opinion is that she has a stronger bond with me than she has with her father.
Yes, well that may or may not be so, but it’s not proposed that that – a change of residence occur even on the father’s material. So he recognises that part, I would assume?---Yes.
What I’m really though after is your view on the effect on [X] because you say she will miss her father and her father will miss her?---Yes.
Perhaps if I put it this way: what does he offer her as the father?---She knows that he loves her dearly and what he offers her – he helps her with homework when he can. She has great fun with him. He takes her on a weekly basis to theme parks and from that she has developed a great love for rides and theme parks.
Things kids do with parents?---Yes. So she does lots of fun things with him.”
From those very honest answers from the mother, it cannot be denied that the child has a primary connection with the father and whether it is described as the primary bond or not - if I need to describe a connection as such - it is an extremely important connection. It is one which, by inference, sums up the views of the child [s.60CC(3)(a)] and the nature of her relationship, at present, with the father [s.60CC(3)(b)].
In addressing the various subsections of the FLA, the overall view of the state of the family appears to be examined from a disjointed perspective, but that is not the case. All components of the case are considered together. In that respect, while a key part of the mother’s case was taken up with the question of consent by the father or delay by the father in consenting to leaving Australia, a consideration [s.60CC(3)(m)], as well as the financial aspects as I have already mentioned, the task of the court is arriving at the best interests decision as the paramount consideration. It is a decision based on the provisions of the Act, as conveyed by the primary and additional considerations to be taken into account.
The court’s task in determining a relocation was addressed in Cowley & Mendoza [2010] FamCA 597 by Murphy J, who stated:
“Parenting Orders and Relocation Cases” – Principles
The Act: Objects, Principles and Considerations
17. Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s. 60CC).
18. The “primary considerations” have particular importance but, as the word “additional”, used in the following subsection, implies, they are to be considered in conjunction with the “additional considerations”. The proper analysis of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.
19. Further, “best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.
20. Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Act (s. 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
21. The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
22. Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:
(a) direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s. 61DA(1)); and
(b) require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s65DAA(1)); and
(c) if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
(d) require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A).
23. The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
24. The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant (s 65DAA(5)).
25. Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.”
It is against that articulation of what the considerations pertain to that the concentration on the father’s verbal agreement, disagreement or procrastination as to the mother taking the child to Malaysia is not the real enquiry. The real enquiry is what the various facts mean in the best interests of the child as a paramount consideration, not discounting the interests of the parents.
What is abundantly clear is that at no time can it be said that the mother had faith in the father’s statements or lack of statement on the issue. If the failure to reach agreement is relevant, that can only be to the way in which this matter came before the court on what was said to be an urgent basis.
While I afforded the parties an urgent trial, that was on the basis that I did not know what the allegations were going to be or that there was not some persuasive and cogent evidence which was so overwhelming that the child ought to be allowed to be removed from Australia to a non-Hague Convention country.
In Marshall & Marshall [2012] FMCAfam 47 I had reason to comment on the requirements for an urgent interim relocation in the following terms:
“14. While that evidence could not be categorised, it could possibly include issues of severe family violence or need for otherwise unavailable medical facilities or some factual situation which needs no or very little explanation as to why there is urgency.
15. Mere employment opportunity alone, without evidence of all of the s.60CC factors, does not meet the need for an urgent hearing. It is not only the s.60CC factors which need consideration. Without evidence upon which to make the parental responsibility decision the Court would be prevented from considering the living arrangements under s.65DAA if a shared parental responsibility order was made.”
Putting aside the interim aspect of that decision, I have since had time to reflect on urgency in light of this matter.
As this is a best interest’s decision, the word urgency, often claimed in child matters, must apply to a situation facing the child. Urgency in itself does not create a dilemma for the court, but the nature of the urgency or the reasons for urgency arising, may cause dilemma in arriving at the best interests decision.
That a court is asked to make a decision on an urgent basis indicates that the parties, or at least one of them, would usually put forward a compelling reason for the orders sought, despite there being no requirement otherwise to show a compelling reason for wanting to exercise the right to freedom of movement.
It raises in my mind that a legitimate line of enquiry is whether in the circumstances as a whole, there is a real urgency which was unavoidable, and the evidence of that must be persuasive and cogent, or whether it is merely an otherwise loosely planned move [s.60CC(3)(m)]. When I say loosely planned, I am referring to the management of all aspects of a proposed move as it relates to the best interests decision in relation to a child.
International relocations are sensitive matters because of isolation from a parent in not only distance, but because of foreign laws. When a claimed urgency arises, there is a real possibility that all relevant evidence will not be before the court.
Viewed from this perspective, urgency in itself creates a difficulty in putting before the court all of that evidence required for proper consideration as referred to in Mendoza, and in this case, there was an existing order, made in 2009, that the parties give the other notice in writing of an intended relocation, to allow time to file an application in court. This is despite the mother knowing from about March of 2011 that she would be prepared to move overseas and the knowledge she had, that the father would be slow to react. Her knowledge of his position is clearly demonstrated by her own email which I have referred to - that she needed to finalise arrangements with him. That is her evidence, she kept the father informed wanting him to respond with any concerns – so she must have known, deep down to use a common description, that he would very possibly eventually oppose her application.
That she must have known is because they are parties who have had controversy in relation to their child due to the holding over of the child in 2009 – with both parties knowing that they had to obtain orders in relation to the child’s living arrangements. Further, the mother gave evidence in this hearing that she was still concerned that such may occur again, hence her draft order requiring the child to travel with herself or a maternal relative. All of these factors again underlines the need for caution even though urgency is claimed.
Why I raise these issues at this stage is because this whole issue of urgency has caused me considerable quandary in determining whether all of the necessary evidence is before the court and this is a legitimate consideration [s.60CC(3)(m)] along the mandated pathway to the final decision.
Given that there was an order made by consent in 2009 that there be notice in writing for a relocation and given that I find that the mother knew or ought to have known that the father would object to the international relocation, unfortunately the onus came back to her to file an Initiating Application early – early enough to allow proper case management. Such would then ensure that a family report could be done without restriction whereby the consultant indicated that she could do a report, but only if interviews were limited to the parents and child. Case management of an international relocation also usually requires the involvement of an ICL, so that the court is not left feeling that the rush can easily create circumstances for a wrong decision which will have life lasting effects on the child, that is one which is not in the best interests of the child.
In reality, there was no need for the matter to come into court on this so called urgent basis. While the court can deal with emergency situations, an artificial urgency is not to be condoned because it is creating a situation akin to that described in C & S [1998] FamCA 66 by Warnick J, when he referred to relocations being decided without “impediment of a situation of recent development”. There are just too many questions which arise and which cannot be adequately addressed on an urgent application.
I am not critical of the parents as parents, both in their sphere are excellent parents, but I am critical that both allowed this situation to develop when clearly, previously, they had turned their minds to having in writing a concrete proposal to relocate and that the other would be given appropriate notice in writing to allow an application to the court. The two month period stated in that order was far from adequate in itself, but the concept was not foreign to the parties. In the event, this application has been left to last minute.
The Full Court has consistently stated that it would be usual for an ICL to be appointed in the case of an international relocation, because, as I stated, there are particular problems which arise when a child may be living thousands of kilometres from a parent and on that basis, the application has less urgency for the child than appears on the face of the application and the case presented. I was certainly not given any alternatives in this matter, for example that I appoint an ICL and hear more evidence later or that the mother go and leave the child in the father’s care – which on the evidence he is capable of doing – until a decision is made.
Against this context, I can now assess the financial aspects, keeping in mind the mother’s evidence that as financial provider for the child, her standard of living would be reduced [s.60CC(3)(f)].
A move to Kuching will give her a wage of $A103,000 or thereabouts. She will have to pay for a child-care nanny and accommodation and up to four flights a year for the father at $2,000 each. Tax is about 25 percent. I understand she sees she can cement a financial future for the child, but it did not appear she would have much to save in terms of Australian costs. I did not have a clear idea of the total annual costs.
I had a very clear idea of her current costs, being about $1,000 a fortnight for rent, general house costs of $300 a fortnight and utility and petrol costs, as well as costs for the child.
She states she cannot rely on the father for financial support.
It an attractive argument at face value.
But this cannot be a face value decision. There are uncertainties and capacity to provide [s.60CC(3)(f)], while it extends to material capacity, also refers to issues such as providing for a child’s emotional needs. It is proposed that the child be away for three years. To a child of this age, that is a long time away from her father who she would see perhaps four times a year. I have real doubts that the father, even on part-time work, could necessarily get the time off on four occasions a year, because as I understood the evidence it is part-time work, not a casual situation where he can please himself as to working hours. If he obtains full-time work, four vacations a year is then probably out of the question.
This becomes a question of the practical difficulty and expense [s.60CC(3)(e)]. Getting to Kuching is not straight forward, with a flight to Sydney, then to Singapore or Kuala Lumper and then to Kuching. Putting aside at least a day’s travel, the mother is proposing to spend $8000 a year from her money, and that does not then take into account where the father would stay in Kuching. He said he would feel uncomfortable in the mother’s house, which raises just one aspect of the effects on the proposed separation on the child [s.60CC(3)(d)] and what accommodation the father is to take when in Kuching. As non-custodial parents often point out, hotels are not the same as providing a home for a child, even for short stays, where physical child-focussed preparations can be undertaken. The evidence of the family consultant, Ms D, was that she observed the positive relationship the child had with the father. She said even though her primary bond was with the mother, ideally more frequent time with the father would ensure the maintenance of a secure attachment. She said in her report that the “loss of frequent time with her father is unfortunately one of the casualties in the short term however it is more likely to have the less detrimental affect than the upon her welfare and wellbeing now in comparison with the alternative”. As to the alternative, she was referring to the economic situation of the mother and in cross-examination she stated that should the mother be able to provide financially for the child in Australia, her view, which I took to be her recommendation, would change. It is very clear that the recommendation was based predominantly on the financial situation and in fact, solely on that consideration. She did not clearly explain her reference to detrimental effects.
The father’s case is more than financial considerations. He raised issues of child care in Malaysia and what would be described as the support base for the mother and the child. Even though the mother said she would get assistance from her father and brother, that evidence-in-chief was challenged successfully in cross-examination when it became apparent that any her relatives were not living in Borneo and there was no on-going capacity for them to go over and assist her. That indicates a lack of other family support, support she has in Australia [s.60CC(3)(b) and (d)], from her family members in both Queensland and Victoria and the father and his family.
It is here that the real difficulty becomes apparent with the urgency situation. The family consultant was unable to compile a report which took other significant family members into account, and there was no ICL who could truly assist the court with regards to independent submissions for the child. While I cannot guess unproduced evidence, there is a nagging doubt that there may well be issues that have gone unaddressed because of the rush. Cultural issues spring immediately to mind if the child is in care when not otherwise at school during those periods when the mother works, which may be every afternoon, perhaps in the morning as well. In Re C & J (1996) FLC 92-697 the Full Court reiterated the position of expert witness when stating: “It is well established that the opinions of an expert, however well qualified, are not decisive of the issue and that it is ultimately for the tribunal of fact to determine the matter having regard to that and the other evidence in the case, including the impressions formed of other witnesses. There is no need to cite authority of that well-established approach”. I understand Ms D’s opinion, but I have formed the view that the urgency has created more than the usual difficulties in determine the appropriate parenting orders because of the real possibility that all issues have not been addressed.
This brings me to the issue of making orders for equal shared parental responsibility.
Both parents seek equal shared parental responsibility and as Murphy J stated in Mendoza that does not make the issue a moot point, because the imposition of such an order not only gives, but imposes on a parent that power in relation to the child whereby the parent exercise “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” [s.61B].
Focus on parental responsibility is an extremely important segment of the FLA, and from it flows consideration of the living arrangements.
The issues with regard to orders for parental responsibility and the living arrangements must take into account two cases, the High Court decision in MRR v GR [2010] HCA 4 and Mendoza, the case I have cited.
In MRR v GR the High Court addressed the issues pertaining to s.65DAA at paragraph 13 the Court stated:
“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 [12]. 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.”
At paragraph 15 the Court stated:
“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 s 61DA(1) is not determinative of the questions arising under s65DAA(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.”
Justice Murphy in Cowley & Mendoza, in examining these statements, said:
“31. In my view, it remains the case that, as I said in the earlier decisions referred to:
· 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: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
32. But, other matters there referred to must now be reconsidered. In particular, while factual findings about best interests will drive many of the matters crucial to be considered in arriving, ultimately, at a decision about appropriate orders (for example, whether, in appropriate cases, the presumption of equal shared parental responsibility is rebutted), it is also in my view necessary to make distinct findings about reasonable practicability.
33. Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents. Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:
In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.
(Reflections on MRR v GR (2010) 84 ALJ 296)”
After examining the cases further, he summarised the principles form the cases, from paragraph 41.
“Summary of Principles
41. The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
· First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
· Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
· Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
· Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
· If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
· If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
· Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
· Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
· Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
· If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
· If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).”
While the father has been happy to allow the mother to make many decisions for the child, I do not see any evidence whatsoever for an adverse finding against him for that. Yet he has still been making decisions, even simple decisions such assisting daily with transport to school. While doing small things like that, he is taking part in the child’s routine and forming that relationship which led the child to state she would miss him. He wants to be part of the decision-making process, the FLA making it a presumption that both parents exercise such powers unless there has been family violence [s.60CC(3)(j) and (k)], which is not a consideration here, or some other reason as to why the presumption would be rebutted. There is no such reason apparent, except to say this, if the mother relocates the child, for all intents and purposes, the father will not be able to exercise any parental responsibility whatsoever and that is not a valid reason to rebut the presumption
Returning to the facts, I have applied the presumption and found that no family violence or other facts exist to rebut the presumption.
On the evidence I have referred to under s.60CC, I could not see why an order for equal shared parental responsibility should not be made.
I intend to make an order for equal shared parental responsibility.
I then must consider the living arrangements [s.65DAA].
Section 65DAA sets out a descending order in which to consider the living arrangements.
In this matter, I am cautious of making statements with any sort of conclusiveness about the child’s relationships and bonding and security, there is a lack of evidence to show that there should be an order in the child’s best interests for spending equal time with the father. The child’s statements that she would miss the father, that if she communicated by computer she would get to see his face but not hug him, indicates to me that there appears to be an incomplete picture here and that is part of the rushed nature of this proceeding in my view. Therefore, it is not a matter that there is not evidence to support more time in one household, rather a situation where there is a lack of evidence. The child’s comments on not being able to hug the father - very strong words - strike me that there is a lack of evidence of her emotional state. If there was an ICL, more probably than not, a psychological report would have been sought and again, I will underline, that it is missing is symptomatic of the rush to get a decision.
But that leads me to the second consideration of whether it is in the best interests of the child to spend significant and substantial time with the father. Undoubtedly, there is evidence that support the proposition, and I must take into account the definition of what that means – days that fall on a weekend and holidays, days that do not fall on such, time that allows the parent to take part in the child’s daily routine and other occasions of significance to the parent. This is where it can be seen that the best interests decision is not one in a vacuum, but one which takes into account the benefit of a meaningful relationship with each parent [s.60CC(2)(a)].
The evidence in this case would suggest that such an order, and that is what the father asks for in the alternative and as indicated in the evidence of Ms D, would not be resisted by the mother, although there was not much attention to the alternative orders being sought by the father in the trial, the effort going to the support or resistance of the mother’s plan to relocate the child.
But then, as stated by the High Court in MRR and Murphy J in Mendoza, there needs to be an assessment under s.65DAA(5), that is consideration of distance, capacity to implement times for the child, capacity to communicate and resolve difficulties, the impact on the child and other relevant matters. This is done against the framework of whether the order proposed would be “reasonably practicable”, to use the language of the section.
It is obvious that if the relocation was allowed, then there could not be an order which would allow for substantial and significant time as the father asks for, there being no reasonable practical way the orders could be implemented. It would be at this point that the proposed order for equal shared parental reasonability could not be exercised effectively by the father. He would have no say in care arrangements, which is a vital question I would have thought for the mother because she will need to employ a child minder and she would expect to work some long hours on occasion. It is questions like this which are fundamental to the child’s welfare and to her best interest, and while I do not think for a moment that the mother would not employ other than suitable carers, this is all at a time when the child will not have her father on hand, as she has him now. The impact on the child was not explored in depth and in my view, this is where a timely application, to allow for the appointment of an ICL would have been of great assistance to the court in coming to the extremely important question of the child’s best interests. The family consultant said there would be “short term deficits that will potentially reap long term positive outcomes”. Given that the consultant stated in cross-examination that had the mother’s financial position in Australia been different she would change her opinion, it seems to me to be a speculative proposition and again, haste has caused this matter to be heard without an ICL and without what I would call a full report.
I have a discretion to exercise. I could adopt the narrow case here and allow the relocation based on finances and that the mother will do everything to facilitate the relationship with the father [s.60CC(3)(c)] or the wider view, that the actions of both parties have really denied the court, and themselves, adequate time to allow for the compiling of a case with all of the evidence necessary to make a decision such as this.
It was so hasty that I allowed an opening for oral evidence from the father’s sister, Ms L Troy, to the effect that she was prepared to pay into a trust account the sum of $6,000, as a gift, to ensure that the school fees were paid for the next three years, to allow the child to be near both parents and paternal family members. That type of evidence would begin relieving the mother of some of her expenses and had she had notice, she may have been able to reassess her position.
Although the father gave evidence of some spending, which I do not doubt, he pays minimal child support and pays for a few other items. He now proposes that he limit his part-time working arrangements so that the child lives with him every second weekend. He was questioned about the diminution in income as well as to his choice not to work full time, but the FLA does not insist that a parent must limit their opportunity of having a child live with them by forcing them into a full-time work situation, nor could it, because care of a child and best interests decisions are achieved on many considerations. In my view, the questioning on this matter did not go to proposed living arrangements, but to the mother’s case that the father does not provide a great deal of financial support.
In summary:
a) There is no possibility of the father moving to Kuching, otherwise the proceedings would not have been necessary;
b) The father would be prepared to move in Australia to “follow” his child;
c) The urgency based on sole financial support created an artificial legal context in which to resolve parenting arrangements which could have a far reaching effect on the child’s best interests;
d) The artificial legal context prevented proper enquiry into issues such as the child’s emotional state or the cultural issues to be faced by the child, when away from parental support by both parents, to identify at least two possible FLA considerations;
e) The urgency left the family consultant only with the material that had been prepared by the parents and nothing else to consider.
f) The mother knew or ought to have known that the father would be unreliable with regard to indications of consent to depart Australia with the child.
g) Orders existed to give notice and bring an application.
In considering the living arrangements in the child’s best interests [s.65DAA], taking into account the legitimate interests of the parents, and again taking into account the views I formed on the evidence of the child’s position and how she would have the benefit of a meaningful relationship with the father [s.60CC(2)(a)], it would not be a reasonably practical proposition to allow the child to be relocated on the evidence presented. I intend exercising the discretion to prevent the mother from relocating the child from Australia.
The situation becomes awkward, because the cases were really directed at the relocation and not at the alternative orders sought by the father, dispute Ms D stating the mother would not be opposed to the father’s alternative orders. I think there needs to be a testing of the mother’s case here.
That being said, I also accept the father’s evidence that should the mother find employment in Australia, he will happily relocate himself, to avoid the matter coming back to court [s.60CC(3)(l)].
I will raise with the parties whether the orders will be final or interim, on the basis that the mother may decide to take the position, leaving the child in Australia, but having a determination made on further evidence. That way she can arrange a time to be back in Australia for a hearing. In any case, I need to raise the issue of how I am to consider the father’s proposals and whether the matter should be transferred to the Family Court, which is a proper legal venue for international relocations.
There are some associated issues I can resolve now.
I will order that the father create a trust account for the child’s education and pay into it $6,000, as per the evidence he produced in his case from his sister. I am acutely away that a submission was made that he is disengaged with financial matters and that may be the case, although he is not disengaged with his child, not the child with him.
I will also retrain the child from being relocated from the Gold Coast although I imagine that such order will be discharged in due course. The idea of this is to ensure that there is no misunderstanding between the parents and again, I am acutely aware of the father’s evidence that he would follow the child if the mother relocated in Australia.
There have been a number of issues I have not addressed although I have considered them. These include the alleged increase in telephone calls by the father to the child in the weeks preceding the case, that that father when spending time with the child actually had her sitting in his lawyer’s office (although I was not satisfied that he was discussing a range of these adult issues in front of her), the father’s alleged lack of involvement with the child’s school events, lack of payment by the father for extracurricular activities, the child’s good relationship with paternal family members and other evidence. I have not done so, because of the mother’s very honest evidence that the child would miss her father and what I have stated, the FLA does not state that a father or mother has to be a bread winner, such would bring about a great deal of decision-making on a discriminatory basis, especially against mothers.
I have not addressed specific statements on the law in such cases as AMS v AIF [1999] HCA 26 or U & U [2002] HCA 36 and other cases, although the reasons address some of the relevant matters identified in the cases.
While I will not order the child’s passport to be held in the court registry, I will make an order for her name to be added to the airport watch list.
Finally, I need to again raise this issue of urgency because it seems to be the case, although I have no figures, that matters are being raised with allegations that they are urgent. In Fellowes & Murphy [2011] FamCAFC 242, Coleman J in exercising the powers of the Full Court of the Family Court stated : “To the parties, every case which comes before the Federal Magistrates Court is, in their view, urgent. In a perfect world there would be no delays in the court system, and every case would be heard almost immediately”. He went on to make comments about the case before him which was an appeal from a refusal by the Federal Magistrate to give an urgent interim hearing. But His Honour’s comments are relevant to the consideration by parties and their legal advisers as to the limitations which are inherent in the legal system. As I stated earlier, urgency itself can be accommodated by the court, but there are issues which a court needs to consider, some of which I have referred to above, which cannot be avoided and more usually than not, it takes time to prepare the evidence which is to be considered in a best interests decision. That is the case here as I have stated in relation to, for example, evidence of the child’s emotional state summed up in what she said to the family consultant – that she would be able to see her father on Skype, but not hug him.
The court can only decide the issue on the evidence according the FLA, the pathway being fully explained in Mendoza the case I have referred to here. But the court cannot be pushed into decision-making in an atmosphere of panic, merely because there was a failure to file material in adequate time when the issue was so obvious that it required the application and response to have been filed months before they were. In this sense the parents need to assess their positions, - the court makes decisions on the evidence, it does not stand in the shoes of any parent with regard to their decisions on getting their case before the court.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 10 February 2012
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