Uccello and Raslands
[2019] FCCA 3215
•20 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UCCELLO & RASLANDS | [2019] FCCA 3215 |
| Catchwords: FAMILY LAW – Parenting – relocation – child’s surname. |
| Legislation: Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA, 65 DAA |
| Cases cited: Paskandy & Paskandy (1999) FLC 92-878 |
| Applicant: | MR UCCELLO |
| Respondent: | MS RASLANDS |
| File Number: | AYC 125 OF 2018 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 28 & 29 October 2019 |
| Date of Last Submission: | 29 October 2019 |
| Delivered at: | Bendigo |
| Delivered on: | 20 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | Skinner & Associates |
| Counsel for the Respondent: | Ms Southey |
| Solicitors for the Respondent: | Robindale Legal |
ORDERS
That the parents have equal shared parental responsibility for the child X born … 2013 (‘X’).
That X live with the mother.
That the mother be and is hereby restrained from moving X’s primary place of residence from the greater Region D municipalities without the express written consent of the father.
That X spend time and communicate with the father as follows:
(a)During school terms until the end of term 2 in 2020 on each second weekend from Friday at the conclusion of school (or 4.00p.m. if not a school day) and Sunday at 5.00 p.m. and each Tuesday from the conclusion of school until 7.00 p.m.;
(b)From the commencement of term 3 in 2020 until the end of term 4 in 2020, each alternate weekend from the conclusion of school on Fridays (or 4.00 p.m. if not a school day) until the commencement of school on Mondays (but extending to Monday at 5.00 p.m. if a long weekend or a student free day) together with each Tuesday from the conclusion of school until 7.00 p.m.;
(c)From the commencement of term 1 in 2021 each alternate weekend from Thursday at the conclusion of school until the Tuesday at the commencement of school (or 5.00 p.m. if a public holiday or a student free day);
(d)During the 2019/20 Christmas school holidays on each second weekend (so as to continue the current weekend regime) from the Thursday at 4.00 p.m. until the following Monday at 4.00 p.m.;
(e)For the term school holidays in 2020 for blocks of five consecutive days and nights as agreed between the parents but failing agreement then in the first week of such holidays from the Thursday at 9.00 a.m. until the following Tuesday at 5.00 p.m.;
(f)From and including the summer school holidays commencing December 2020/January 2021 for two weeks commencing on 2 January 2020 and in each alternate year thereafter and commencing on 9 January in 2021 and in each alternate year thereafter;
(g)For one half of each term school holidays from 2021 as agreed between the parents and failing agreement then for the first half of such holidays in 2021 and in each alternate year thereafter and for the second half of each holidays in 2022 and in each alternate year thereafter (with the first half of holidays to commence on the Friday at 5.00 p.m. until the second Saturday at 12.00 noon and the second half of holidays to commence on the second Saturday at 12.00 noon until the third Sunday at 5.00 p.m.);
(h)In any event, X is to spend time at Christmas in 2020 and each alternate year thereafter with the mother from 5.00 p.m. on Christmas Eve until 3.00 p.m. Christmas Day and time with the father from 3.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day and in 2021 and in each alternate year thereafter time with the mother from 3.00 p.m. Christmas Day until 5.00 p.m. on Boxing Day and with the father from 5.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day;
(i)That ‘weekend’ time for X with the father be suspended during all school holidays; and
(j)Such other times or variations of the above as may be agreed between the parents from time to time.
That each of the parents be and is hereby restrained from using or permitting X to use any surname other than her given surname of ‘Uccello’ in common usage and/or documents of whatsoever type or purpose.
IT IS NOTED that publication of this judgment under the pseudonym Uccello & Raslands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
AYC 125 of 2018
| MR UCCELLO |
Applicant
And
| MS RASLANDS |
Respondent
REASONS FOR JUDGMENT
Applications
These are parenting proceedings in respect of the parties’ one child X born … 2013 (‘X’).
The father is the applicant. He proposes final orders whereby X live five nights per fortnight with him and nine nights with the mother. He is content for there to be a build-up to these final orders. He also asks for time with X for half of each term school holidays and a block of two weeks in January each year together with time at Christmas. He proposes an order for equal shared parental responsibility of X.
Specifically, Mr Uccello opposes the mother’s application to relocate X from City E so as to live in the Region F area. Secondly, he opposes the mother's application to change X's surname from 'Uccello' to 'Raslands'.
The mother asks for orders which would have X living with her but being permitted to move X's primary place of residence from City E to Region F. She proposes that X spend time with the father each second weekend from Friday afternoon until Sunday afternoon and now appears agreeable to the father's proposals for X's school holiday time with him.
The mother too asks for an order for equal shared parental responsibility.
The mother argues for orders that there be leave given to apply to the Registry of Births, Deaths and Marriages to register a change of X’s surname from ‘Uccello’ to ‘Raslands’ although it appears that she is or has been open to the child's surname being changed to ‘Raslands-Uccello'.
Background
The mother is 46 years of age. She lives in City E and runs a small business supplemented by casual employment. There is no evidence that the mother has re-partnered. X is her only child.
The father is 33 years old. He is currently a student at TAFE. He has formerly had a career in the public service. He has remarried to Ms A who has two children being G (aged 12 years) and H (aged 16 years). G lives with Mr Uccello and his wife. H visits in school holidays and weekends from primarily living with his father in City B. Ms A operates a home business for which the father provides some administrative support. Ms A participated in the Family Report process but did not give evidence in the proceedings.
The parties commenced a relationship in 2010 and were married on … 2012. They separated in December 2015 and divorced in May 2017.
The parties lived for a time in Queensland during the husband's service but otherwise appear to have lived primarily in the greater City E district.
X currently attends primary school in City E and is in grade Prep.
These proceedings were commenced by the father on an application filed 12 March 2018 in the Albury registry of this Court. The most recent interim orders provide for X to live with the mother and spend time with the father each second weekend between Friday afternoon and Sunday afternoon and also each Tuesday for a couple of hours after school. Prior to September of this year the father's time with X took place on only each second Saturday and Sunday during daytimes. Prior to that his time with X was supervised and still prior there was a period of near 2 years where the parties agree that X and the father had virtually no direct contact relationship.
The relationship between the parties continues to be an acrimonious one. There have been various applications for intervention orders. Significantly, in their evidence to this Court, each of the parties acknowledged some contribution towards the family violence within its broader definition in the Family Law Act and each also expressed remorse for that situation.
The Applicant Father's Case
The father says that his relationship with X is a developing one and not yet fully established. He says that the mother's proposal to move with X to Town F will effectively limit that relationship into the future to its current regime of weekends and not permit his ultimate ambition of substantial and significant time for him with X. Further, however, the father's case is that the mother’s proposal to move with X to Town F is primarily based on malice towards him and directly to limit his relationship with the X.
The father challenges the mother’s expressed reasons for her proposed move to Town F .
The father says that the distance between City E and Town F of something near three hours travel would be onerous for X.
Generally, the father argues that the mother’s application to relocate with X is consistent with her history of attempting to frustrate and limit his relationship with his daughter evidenced, he says, by her failure to negotiate or mediate this parenting dispute thereby requiring him to initiate proceedings. He says that the mother has previously required his time with X to be supervised. He says that she insists on changeovers occurring at a police station. He further says that the mother’s use of the name ‘Raslands’ for X and her application to formalise such a change of name is indicative of her lack of respect for X's relationship with him.
Although the father in his evidence suggested that he himself would consider moving to Town F if the Court acceded to the mother’s application, he emphasised that he has a relationship and commitments in City E and that such a move would confront many practical obstacles.
The Mother’s Case
The mother says that she has numerous family members in the Region F district who can offer her both actual and emotional support in her primary parenting of X. The mother is originally from Region F and candidly agrees that she herself has a long standing desire to live in that area.
The mother says that she has employment opportunities in Region F consistent with her current business but also with work available at a local employer. She says that she is X's primary financial support and that considerations of employment impacted directly on X's best interests.
The mother says that she remains fearful of the father and hence her previous request for changeovers at a police station. She says that she would feel more comfortable and confident in her parenting of X if not required to live proximate to the father and his wife. Whilst the mother agrees that X's relationship with the father is a 'work in progress', she says that the distance between City E and Region F is not prohibitive of that relationship continuing to develop with, effectively the parents sharing the child’s quality time over school holidays and weekends. She says that she is prepared to assist with the travel accordingly.
The mother says that while she would 'cope' if required to remain living with X in City E, her own personal happiness and hence her own parenting generally would be enhanced by permitting her to live in a location where she would be happy.
The mother says that a change for X’s surname from ‘Uccello' to ‘Raslands’ would permit the child to more comfortably associate with the mother who is her primary carer and would save confusion for X. The mother concedes that she has been using the name ‘Raslands’ for X on an informal basis for some time and that X herself is comfortable with and identifies herself with that surname. The mother argues implicitly that such a name change for X would not impact negatively on her identifying with her father and extended family.
The Evidence - Family Report
The Court had the considerable benefit of a Family Report prepared by Regulation 7 family consultant – Ms C. Ms C’s report is dated 28 August 2019 and prepared after interviews and observations of the parties and X on 31 July 2019. Ms C gave evidence and was cross-examined.
At the time of the interviews for the Family Report in July 2019, it seems that the mother had not then determined to relocate herself and X from City E to Region F. This issue was not raised with the family reporter although there is something of an unparticularised reference to that possibility in the mother’s first Response. Consequently, the report itself does not address the veracity of the mother’s current rationale for wishing to relocate or any benefits or detriments for X.
Ms C's interviews with the parties generally reflects the evidence in their affidavits and to this Court. The mother claims family violence and the father denies the need for domestic violence applications made by her.
At [26] of that report Ms C does note:
Ms Raslands described a support network consisting of her parents and their respective partners who live in the Region F areas and local friends. She stated that she has three adult sisters and two brothers with contact maintained. Ms Raslands stated that she attends Ms X, a Counsellor located in Town J, attending on a fortnightly basis. She stated that this has been beneficial and in place since 2014. Ms Raslands stated that (sic) the past she has engaged in services provided by the local Women's Centre, this having a focus on her experiences of family violence. Ms Raslands stated that she has not been formally diagnosed with a mental health condition however noted a past experience of a panic disorder at the age of twenty five years that was treated with success. Ms Raslands described her emotional health as generally without issue noting that she attempts to lead a healthy lifestyle. She acknowledged the stress of the legal proceedings.
At [32] Ms C reports:
X is willing to spend some time on her own with the Report Writer. She impressed as a friendly, engaging and talkative little girl. X was able to make comments in relation to her family circumstances. X talked of her happiness living with her mother, describing her mother in positive terms. She was able to describe the current paternal arrangements. She described herself as 'a bit happy' spending time in the paternal home. X reflected upon her time at the Children's Contact Centre and speaking with her father via Skype adding 'it was ok and I got used to it'. X commented that at first 'it was a bit scary seeing dad, he looked different, it helped me to talk to him.' X confirmed that she now spends time at the paternal home adding 'it is a bit strange and different, I am staying a bit longer, I have my own bedroom and toys and I am getting used to it'. X commented that she 'get (sic) on ok with Ms A, G and H. She added that she particularly likes G, considering her 'one of my biggest friends now'. She noted that the maternal partner 'sometimes looks after me'.
At [33] Ms C reports X as indicating 'that paternal time felt ‘just right’ at the present time. She commented that she did not have worries whilst in the father's care. Notably X refers to herself during interviews with Ms C as 'X Raslands’ and that she did not know her father's surname.
At [37] – [38] Ms C reports her observations of interactions between X and the parents. It seems that Ms A joined the father for these observations with X. The indications are that X was comfortable with both Mr Uccello and his wife. Similarly, X is reported as appearing 'relaxed and happy in the maternal presence'.
In her evaluation Ms C notes that X was then just five years of age and that her parents had separated when she was just two years old. Thereafter there was a gap in X's time with the father for nearly 2 years between December 2016 and September 2018. Ms C understandably notes that X's primary support and attachment consequently rest with her mother.
Ms C notes the ongoing issues, allegations and negativity in the relationship between the parents themselves.
At [46] Ms C opines:
X at age 5 impresses as a delightful little girl, bright, engaging and social. It is likely that this child’s fairly resilient nature has assisted her over the past eleven months and helped her to adjust to fairly major changes in her family circumstances. It is also considered that X has been assisted by the planned paternal arrangements that have afforded both gradual increases in time with her father and in relation to getting to know and becoming more familiar with Mr Uccello. It also appears that X has received reassurance and encouragement from Ms Raslands in this area, this considered to be a child focused and sensitive approach.
In her conclusions at [48], Ms C states:
On balance, it is considered that X will continue to emotionally benefit from primary maternal care. She will also benefit from the opportunity to spend planned predictable and positive time with Mr Uccello and other members of the extended paternal family. It is considered that the current arrangements of alternate weekends and after school on Tuesdays provides this opportunity of this child strengthening her relationship with Mr Uccello. Mr Uccello is encouraged to spend some one-on-one time with X, this also assisting further developing the paternal parenting relationship. Consideration could be given to a planned progression of additional paternal time, this including the introduction of an overnight on the Saturday during alternative weekends in two months’ time. Further planned progressions of paternal time during school holiday periods could also be considered during the upcoming long summer Christmas holiday period, commencing with a block period of three overnights. From the commencement of 2020 further consideration could be given to extending alternative weekends to include the Friday night and block periods of five overnights during the school holidays.
In her evidence in Court, Ms C again emphasised her recommendation of a cautious or conservative approach in what is effectively a reintroduction of X to the father in circumstances where there had been a gap of almost 2 years in this young child's relationship with him.
By the time of her giving evidence in Court, Ms C had been appraised of the mother’s now proposed relocation of X and herself from City E to Region F and had been provided with the trial material.
When asked in cross-examination about the impact of travel for this six-year-old on the mother's proposal, Ms C responded: “…is significant time; not easy travel; adds to the complexity.” She opined that geographical issues always make alternate weekend regimes more difficult and more complex. She noted that the history of this matter from X's perspective has been one of disruption and change in her relationship with her father with periods of no time and later the use of contact centres and then limited time but with a more recent introduction for X of overnight time to the father. In summary, Ms C noted ‘a lot of adjustments for X over the last two months’, together with the ‘relationship with her father slowly developing over time’ and with further changes for X anticipated on the mother’s application including the loss of the current time each Tuesday afternoon/evening which would then cause a gap in direct contact of some 12 days.
Despite the mother's revelation in the witness box that she would be agreeable to X spending block periods of time with the father as soon as the forthcoming summer school holidays, Ms C took a more considered and cautious approach noting that this would represent yet another change for X in her living arrangements and that, in her view, the parents should take the matter forward at a pace which will suit X but nevertheless noting, consistent with her family report, that X appears to be a resilient little girl with some capacity to deal with change.
In summary, I understood Ms C's evidence in the witness box to be one recommending some caution in moving too quickly forward for this six year old in respect of what is a developing relationship between the child and the father. Ms C recognised the logistical difficulties on the mother’s proposal of travel for such a young child.
The Applicant Father
Mr Uccello relied on two affidavits affirmed the 21 August and 14 October 2019. He gave evidence consistent with his affidavit material. I observed him to be an honest and candid witness in cross-examination. Notably, Mr Uccello was able to make admissions against interest and specifically acknowledging his part in family violence during the relationship between he and the mother. Further, Mr Uccello was able to be spontaneously complimentary of the mother as to her parenting of X and despite the obvious continuing acrimony between he and Ms Raslands.
Generally, I accepted the father as a witness of the truth and found his responses in cross-examination to be considered and child focused.
The Mother
Ms Raslands relied on her trial affidavit affirmed 12 September 2019. She was cross-examined at length and, in particular, as to her motives for asking for orders to allow her to relocate with X. Generally, I did not find Ms Raslands to be as impressive a witness as was Mr Uccello. Her responses in cross-examination were often inconsistent and notably in respect of whether or not she maintained the current 'fears' of the father. She tended to deflect from the question in her responses and to provide more generic answers so as to shore up her case. Whilst it is perhaps understandable in a ‘relocation case', the mother’s responses in cross-examination were at times more indicative of her self-interest rather than X's best interests and similarly she at times gave responses indicative of a sense of 'parenting as of right' in respect of X but again perhaps understandable where X is an only child and the mother has at all times been this child's primary carer.
Relevant Law
It is pertinent to note that in matters such as this which are often colloquially referred to by Counsel and even Judges as ‘relocation cases', the Family Law Act 1975 ('the Act’) does not itself present any special type of parenting case in the sense of a 'relocation' matter. The Act itself is silent as to the concept of 'relocation' and it follows, therefore, that the proposed relocation of a child is neither expressly prohibited by statute nor is there a presumption against it. Importantly, a proposal by one parent to ‘relocate’ a child is just one of numerous factors to be taken into account by the Court in an overall task of determining orders for living and parenting of a child which are ultimately in the best interests of the child. It is the best interests of that child that is the paramount consideration for the Court.[1]
[1] Section 60CA of the Family Law Act 1975
Secondly, a number of Full Court decisions both prior to and following the significant amendments to the Act in 2006 have emphasised that there should be no dissection of a parenting matter into discrete issues of, firstly, with which parent the child will live and, secondly, a separate issue as to whether the relocation should be permitted.[2] A later Full Court in Taylor & Barker[3] noted at [60]:
… In our view, his Honour dealt with the relocation proposed in the context of his consideration of s.60CC and s.65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s.65DAA.
[2] [1999] FLC 92-878
[3] [2007] FLC 93-345
The Act at s.61DA offers a presumption that it will be in a child's best interests for both parents to have equal shared parental responsibility for that child. ‘Parental responsibility’ is not to be confused with the day-to-day living arrangements for a child, but references the rights and obligations of parents in the making of long-term and important decisions for children. Examples are usually given in matters such as medical procedure, education and religion. The presumption does not apply if the Court is satisfied that there has been family violence or abuse in respect of the relevant child. Alternatively, the presumption of equal shared parental responsibility may be rebutted on evidence satisfying a Court that such an order would not be in the best interests of the child. Notably, and despite the assertions and concessions in respect of historical family violence, each of the parents now asks for an order that there be equal shared parental responsibility for X.
Should the presumption of equal shared parental responsibility apply or the Court make such an order then a statutory course of consideration follows in respect of the child’s living and parenting regimes. Firstly, s.65DAA(1) provides that, should there be an order for equal shared parental responsibility, then the Court must:
(a) Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
If the Court, on the evidence, is not satisfied on the balance of probabilities that it is both in the child's best interests and reasonably practicable for there to be an order for equal time then the Court moves to consider at s.65DAA(2) whether it is both in the child's best interests and reasonably practicable for the child to spend 'substantial and significant time' with each of the parents.
S.65DAA(3) provides a definition of 'substantial and significant time' as:
(a) The time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holiday; and
(b) The time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Notably, in the matter now before me, neither parent asks for an order for X to live in an equal time arrangement between them. The father does, however, ultimately seek orders which fit within the definition of 'substantial and significant time'. The relevance, of course, is that the mother's proposal to relocate with X some three hours from City E to Region F effectively places geographical and logistical prohibitions on such an order being 'reasonably practicable'. That is, if such an order is made then inevitably X's time with the father could reach its maximum quantity by being limited to weekends and periods during school holidays. In respect of this consideration, and noting the peculiarities of proposals which involve a relocation of a child, the High Court in MRR & GR[4] emphasised the dual requirements of the statute in that it be both in the child's interests and reasonably practicable for orders of either an equal time or substantial and significant time type. Their Honours observed at [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 s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in X, the Court was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[4] [2010] 240 CLR 461
Various superior Courts have over the years noted the difficulties exposed for Courts in dealing with matters where there is a proposed relocation of children. Those Courts have assisted trial Judges by compiling a set of 'principles' which remain valuable and considerable assistance for trial Judges. Those ‘principles’ can be summarised as follows:
(a) Relocation matters are to be determined in accordance with the provisions of Part VII of the Act;
(b) The child's best interests remain the paramount but not the sole consideration;
(c) A relocation proposal is to be evaluated within the context of the necessary findings in relation to a child's best interests (s.60CC factors) and where appropriate s.65DAA (reasonably practicable);
(d) The Court must consider the parties' proposals, including the advantages and disadvantages of the proposed relocation and may be required to formulate proposals itself in the best interests of the child;
(e) Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
(f) An applicant for relocation need not show 'compelling reasons' in support of the proposed relocation but must produce probative evidence which permits the Court, on balance, to find a parenting order involving a relocation to be in the child's best interests; and
(g) The child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but that such a ‘right’ must ultimately defer to the child's best interests.
Consequently, the task for the Court, as its paramount consideration, remains to determine the best interests of that child on the basis of the parties proposals (although the Court is not bound to choose simply between those proposals) and the probative evidence. The proposals and the evidence are to be referenced to the numerous mandatory considerations set out in s.60CC(2) and (3) of the Act. Those considerations are to be viewed against the broad objects and principles of the Act set out in s.60B, which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both 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 the children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring the 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 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 had 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).
Consequently, in the matter now before me, I must consider the circumstances of X's current and future relationships with each of her parents and the responsibilities of those parents with a foundation of X's best interests but considering the Objects and Principles set out above. Specifically and more empirically based, is the referencing of the evidence and the proposals to the s.60CC(2) and (3) factors. Those considerations are divided into 'primary' considerations at subsection (2) and 'additional' considerations of subsection (3) although there is no hierarchy of importance save and except that amendments to the legislation obligate judges to put greater weight “on the family violence criteria at s.60CC(2)(b).
Inherent in the father's argument in the matter before me is his claim that the opportunity for X to establish a meaningful relationship with him will be limited or prohibited by the mother's proposal to relocate the child from City E to Region F. Section 60CC(2)(a) provides that the Court should consider making orders which are of 'benefit to the child of having a meaningful relationship with both of the child's parents'. Importantly, however, and whilst this is a primary consideration for the Court, the Full Court in Champness & Hanson[5] observed at [103]:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make orders most likely to ensure the children had a 'meaningful relationship' with both parents. This is an incorrect assumption. The Court's obligation is to make the orders most likely to promote the child's best interests. In seeking to achieve that objective, s.60CC(2)(a) directs the Court to consider 'the benefit to the child' of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[5] [2009] FamCAFC 96
Section 60CC Factors
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child's parents
The father places emphasis on this consideration in his opposition to X moving from City E to Town F . The father says that the relationship with X is a developing one and his evidence is supported by the mother herself and the family reporter.
The mother argues that, whilst X's relationship with the father is not yet fully established, it can continue to develop and flourish by reason of the orders that she seeks which will provide alternate weekend and block holiday time for X and the father. Implicitly she argues that it is not the 'quantity' of time which establishes relationships but rather the 'quality' of such time.
It is well established that higher frequency of direct contact between a young child and a parent is beneficial to the establishment of that relationship. Currently X spends time each second weekend and each Tuesday with the father. The mother's proposal would, for practical reasons, not allow the Tuesdays to punctuate fortnightly weekend time and hence the frequency of direct contact would be reduced.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother bases her application to relocate X in part on what she says is her fear of the father. She says that putting distance between she and Mr Uccello will give her more comfort and hence a greater parenting capacity.
Although the father denied to the family reporter that he was a perpetrator of family violence, his evidence in this Court was more candid in that he acknowledged that he contributed to what was obviously an acrimonious and conflictual household. He expressed remorse. Similarly, however, Ms Raslands in cross-examination also volunteered and acknowledged that she had a role in the violence in the household and made similar expressions of remorse.
Whilst I am satisfied that the relationship between the parents was a difficult and often tense one, it is the mother's claim that she remains fearful of the father and the father's propensity for continued family violence within its broad definition which are of most relevance here. As mentioned above, I found the father to be an impressive witness. I thought his admissions in the witness box to be legitimate. There is no recent history of any violent incidents between the parties although their interpersonal relationship remains tense. The father has remarried and appears to have 'moved on' following the demise of his relationship with Ms Raslands. On the balance of probabilities, I cannot find that he has a current propensity for family violence.
Also as mentioned above, the mother was not as impressive a witness. Her evidence in respect of her 'fears' were inconsistent and somewhat contradictory. I gleaned the impression that her claims were expressed more in support of her case to move to Town F rather than based on honest and empirical facts. The examples that she gave to support her claim of being fearful were not persuasive.
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X is just six years of age and would not be able to rationalise her own best interests. Clearly, however, and evident in the family report, is that X's primary attachment and dependency rest with her mother with whom she has primarily lived in her six years.
Section 60CC(3)(b) – the nature of the relationship of the child with each of her parents.
The father, the mother and the family reporter all agree that X's relationship with her father is not yet fully established. In its short history, there has been a period of approximately two years where there was virtually no relationship whatsoever. There followed a period of limited supervised time which later became time limited to day times on both Saturdays and Sundays fortnightly and more lately the introduction of overnight time. It is reasonable to assume that this relationship has not yet had sufficient time and quality to develop to anywhere near its potential. X's own comments to the family reporter suggests that she herself is still exploring the potential of her relationship with her father despite appearing to have some comfort in his home and with its other occupants.
Ms Raslands is critical of the father's historical commitment to establishing and maintaining a relationship with X. Nevertheless, he is the applicant in this matter and I am satisfied, if he did have previous failings, then he is now committed to pursuing that relationship.
The nature of X's relationship with her father will be different whether she remain in City E and in close proximity to him or be permitted to relocate with her mother some three hours away in Town F. Whilst the distance might not ordinarily seem prohibitive to a continuing relationship, it would, for instance, impose some six hours travel on the father if he was to travel to Town F and return for any school or extracurricular activities for X. Similarly, the opportunity for flexibility and spontaneity in his relationship with X would effectively be lost or, at least, significantly hindered. As mentioned above, the current Tuesday evening time for X with the father would be lost and whilst this is perhaps only a couple of hours, it does serve to add frequency and recognition to that relationship which would otherwise most likely endure gaps of some 12 days in each fortnight.
X's relationship with her mother is established and successful. Undoubtedly, X looks to her mother for support as her primary carer and attachment. The only issue for the Court is the insight of Ms Raslands as to the nature of her own relationship with X and, more particularly, the need for X to establish and maintain a similar relationship with her father. The father's case argues that the mother parents X 'as of right' and that her proposed move for X to Town F is motivated by limiting X's relationship with him.
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; each spend time with the child and to communicate with the child
The mother criticises the father's commitment to a relationship with X in the time following separation. I am satisfied by his application and his evidence and demeanour in Court that he now does legitimately pursue that application and note, in any event, the father's evidence that he attempted to negotiate and mediate time for X with him prior to his application and may not have received commensurate response from the mother.
The father criticises, and the Court has some concerns, in respect of the mother unilaterally changing the common usage for the child of her surname from ‘Uccello’ to ‘Raslands’. The mother’s responses in cross-examination in respect of any effort by her to engage the father in this process were unconvincing. Similarly, the mother's explanations for her unilateral actions show, in my view, a lack of insight into the nature of a relationship for a child with a non-primary parent and, more particularly, X's relationship potentially with the father. Indeed, after hearing the mother cross-examined, I find some merit in the father's argument that the mother's propensity to act unilaterally in matters such as this indicates something other than her stated desire for X to have a relationship with the father to its ultimate potential. Specifically, the mother's evidence that this six year old has been 'comfortable' with a change of surname in general usage now for some two or so years is unconvincing. Further, the circumstances created by the mother's unilateral action where X appears to have common usage of ‘Raslands’ at her school and elsewhere whilst being formally enrolled at school under her given name of ‘Uccello’ would probably create the very confusion in this child that the mother claims will be avoided by the use of the surname Raslands.
Section 60CC(3)(ca) - the extent to which each of the child's parents have fulfilled, or failed to fulfil, the parents obligations to maintain the child
The mother says with some merit that the father has accrued significant arrears of Child Support. Mr Uccello in turn says that he has and does provide payment and maintenance in kind over and above his obligation and is addressing the issue of the arrears. Notably, however, it remains the mother's case that as part of her rationale for wishing to move with X to Region F is the availability of employment in circumstances where she says that she has been and remains the primary financial support of X.
Section 60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of her parents or any other person (including grandparent or other relative of the child) with whom she has been living
This consideration features prominently in the father's case. Although the travel between City E and Town F might only be around three hours, the father argues that the child’s age and the nature of their developing relationship combine to make this an important consideration for the Court. For example, the father says that the frequency of his time with X will be reduced where the current Tuesday afternoon contact will effectively be unavailable.
Conversely, the mother argues that the changes brought about by a move of herself and X from City E to Town F will not constitute a significant change for X in her relationship with her father where currently she spends each second weekend and that this would not be altered on the mother's proposal save and except for periods of only a couple of hours each Tuesday. This argument must, of course, however, be seen within the context of the legislation which obliges Courts to consider making orders for substantial and significant time if they be both in a child's best interests and reasonably practicable which are the orders ultimately sought by the father.
Section 60CC(3)(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
The family reporter in her evidence in Court was direct in stating her concerns that the geographical obligations imposed by the mother's proposal would have ramifications for X at least in the sense of creating yet another change in this child's relationship with her father.
Relatively, however, the practical and logistical considerations of a move of some three hours duration would not normally appear to be insurmountable. The mother says that she will contribute to the travel obligations. The father's personal circumstances do not seem to preclude him from also contributing.
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
The mother has been X's primary parent. Her capacity to care for the child's physical needs are not impeached. Indeed, Mr Uccello was complimentary of the mother in this respect in his evidence in Court. He continues to delegate this primary role to her in that he ultimately asks for just five nights per fortnight. The issue, however, remains the insight and commitment of the mother to maintaining a relationship for X with the father. She says that she has both understanding and commitment. The father argues that the mother’s proposed move is predicated on limiting further development of his relationship with X.
The father's capacity to attend to X's needs is not so developed or demonstrated as those of the mother. Nevertheless, the evidence satisfies me generally that he is able to provide physically for the child and as evidenced by the mother consenting to X now spending full weekends with the father. Both parties and the family reporter describe the relationship between X and her father to be a developing one and I assume, therefore, that the father's skill-set is similarly developing.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the court thinks are relevant
X is just six years of age. She has spent one period of almost 2 years without any substantial contact with her father. Considerations as to the development of the relationship between father and daughter are relevant. Further, given her age, and noting the comments of the family reporter, considerations of travel and impact on quality time for X and the father are relevant in respect of the mother's proposals.
Section 60CC(3)(h) – if the child is an Aboriginal child or Torres Strait Islander
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 issues here are twofold. Firstly, the mother challenges the father's historical and ongoing commitment to a productive and responsible relationship with X in circumstances where he delegates her to be the primary parent for their daughter. Secondly, the father challenges the mother's bona fides in proposing to move X from City E to Town F.
Section 60CC(3)(j) and (k) – issues of family violence and family violence orders
These matters have been dealt with above.
Section 60CC(3)(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 these parties
Counsel for the father raises an issue again in respect to the bona fides of the mother in asking to move with X to Town F. It was put to the mother in cross-examination that she may further move with X with the implicit suggestion that she may intend to do so if the father himself was to move to Town F or, alternatively, if the mother found Town F to be less suited or less compatible with her stated ambitions. This is a relevant consideration for the Court and sits squarely with consideration as to the bona fides of the mother's application. As the family reporter noted, X has already endured considerable changes in her relationships with her parents during her six years. Prima facie, such changes are not usually in a child's interests. The Court must consider whether the mother’s application, in so far as she is able, would have her remaining in Town F if that application was to be successful and in circumstances where she has apparently not lived there for some 29 years and where there are some, if not insurmountable, impacts for the child on the mother's proposal.
Findings and Conclusions
Parenting matters involving a proposed relocation of a young child are notoriously difficult for trial judges in circumstances where inevitably there will be both positives and negatives of an order allowing a parent to relocate with a child or, alternatively, denying an application for that parent and the child to relocate. Experience suggests that the greater majority of parenting matters which come before this Court ultimately involve only discrete dispute where ultimately Courts can be confident that the foundation remains for children to move forward, despite their parents' separation, able to develop and easily maintain relationships with both their parents. However, where an issue of relocation is involved then the matters become far more complex in their consideration and determination and where whatever orders a Court make will inevitably have significant and long term effect on both child and parents. From a practical perspective, should the Court permit a parent and child to relocate then the remaining parent will be understandably aggrieved. It would not be unreasonable to expect that any potential for open communicative and cooperative relationships between the parents would be damaged or lost. The remaining parent will feel a sense of loss if only in the change to the nature of the relationship with a child and the logistic implications imposed. Conversely, however, should a Court not permit the relocation of a child with a primary parent then that parent will be left similarly aggrieved with ambitions unfulfilled and a feeling of being required to live in a location contrary to their preference. Again, it would not be unreasonable to expect that there might be a consequent negative impact on any prospects of a successful co-parenting relationship.
There are a number and obvious positives for the mother and X in granting the mother's application. Significantly, she is the primary carer for X. The father does not come to this Court asking for, or apparently prepared to accept, primary responsibility for the care of this six year old. He seems content for the mother to have that responsibility. As such, her right of freedom of movement must be seen in such context despite still being subject to the best interests of the child. Such a context does, however, enliven real consideration as to the mother's happiness.
The mother says that she has family support in the Region F area such that is not relatively available to her in City E. She says that she has job opportunities available to her that will give some financial security given her job history and where she is a primary financial supporter for X. She says that she can and will contribute to the travel for X in spending time with the father and where that time can continue roughly in terms equivalent to the current arrangements. She says, with some force, that she herself will feel happier if distance is put between her and her former partner where there has been ongoing tension between these two parents. All of these 'positives' might be bundled together to argue that this mother is a delegated primary carer of a young child and says that she would be happier living in Region F than in City E. To her credit, she does not come to this Court (as some others have) and say 'I am the primary carer and I intend to move from City E to Town F in any event, and no matter what orders the Court makes in respect of my daughter'.
Conversely, of course, there are also negatives to the mother’s case which in turn sit as positives for the father's argument. He says that it is conceded and corroborated by the family reporter that his relationship with X is not yet a well-established one and that the mother's move will, at the very least, put barriers in the further development of that relationship. He argues that whilst the mother says that X and he can maintain a father/child relationship by fortnightly and school holiday travel between City E and Town F then logic would suggest that the mother as a 46 year old, skilled, and cosmopolitan woman might similarly easily maintain her supportive relationships with her own extended family in Town F. Further, the father puts much weight on an argument that the Court could not be confident that the mother will facilitate and foster a continuing and developing relationship between he and X despite the mother's claims to the contrary. He says empirical evidence, including the mother's unilateral change of the child's surname, should give the Court concern that this mother will not engage in flexible and spontaneous time between X and the father and for all intents and purposes his time with X will be limited to the present arrangement or indeed something less where the Tuesday afternoons will be removed. The father agrees that the mother has an established business in City E and a strong network of friends and support.
On the evidence I am able to find that X's primary attachment and sense of support rests with her mother. I find that X’s relationship with her father is not yet fully developed and I am satisfied generally that a higher frequency of direct contact between the two will aid in developing and maintaining that relationship where this child is just six years of age.
I am not satisfied on the evidence on the balance of probabilities, that Mr Uccello was a completely disinterested parent during the period of almost two years when he had no direct contact with X. I accept his evidence that he attempted negotiations and to effect mediations but without positive response from the mother. I note that it is Mr Uccello who is the applicant in these proceedings. I have had the benefit of seeing and hearing both parties give their evidence in this Court and be cross-examined and also the benefit of observing their demeanours in the witness box. Consistent with Mr Uccello, I do harbour concerns as to the veracity of the mother's claims that she has and will in the future facilitate and encourage X's relationship with the father. I am concerned that she has a tendency to 'parent as of right' and thereby neglecting the importance of the relationship for X with her father. In this respect, the mothers’ explanations as to her unilateral change of X’s surname were not persuasive and serve only to enforce the concerns that I have in this regard.
I am easily able to find that the relationship between these parties remains tense following what they both now concede to be their contributions to a fractious atmosphere during their relationship. I am not, however, convinced on the evidence that this mother retains a 'fear' of the father to the extent that she says in her evidence. When challenged as to these asserted current fears in cross-examination, she appeared to be unable to give empirical examples or sources for such 'fear' of any substance. Her evidence in this respect was vague, inconsistent and given with a tendency to deflect to generic statements. Consequently, I also harbour concerns in respect of the mother's stated motives in asking to relocate with X from City E to Town F. The evidence in this respect gives some support to the father's contention that the mother is motivated other than any ‘fear’ of him and perhaps, as he says, to put barriers between any extended relationship for he and X over and above the current weekend time.
I do find that the mother is the primary financial supporter for X. I accept that her work in City E is casual and her business is not full time. Although there was no corroborating evidence, I am prepared to accept that she has an offer of employment at an employer near Town F. However, the mother's confidence that she might be able to develop a business in Town F more successfully than she has done in City E appeared to me to be a claim made without any supporting evidence and again her attempted explanations on including family members as clients were unconvincing.
Given the above, I am able to find that this is a skilled and competent mother in respect of X's physical needs. I do not reach the same positive conclusions in respect of the mother's ability to insightfully understand and attend to X's emotional needs and, in particular, to her need for a relationship with her father. I tend more to the conclusion that this is a mother who has determined perhaps that X's relationship with her father should not extend past its current each second weekend and that her motivations, at least in a large part, are grounded upon her intent accordingly.
In conclusion, and whilst I remain somewhat troubled by reconciling the freedom of movement of an adult and delegated primary parent of a child, and where that parent’s happiness and comfort in their parenting of the child is and should be a weighty consideration, I am of the view that whilst the mother need not show 'compelling' reasons for an intended relocation of a child, she should, however, be able to give and adduce evidence which satisfies the Court that there are reasons of probity which attend to a child's best interests in favouring such a proposed move. This is a 46 year old mother who concedes that she has not lived with the support of her extended family for 29 years. She impressed me as mature, independent and skilful. She has established her own business in City E. She has successfully parented X to this stage. She has established support networks in City E albeit not necessarily from family members. Both she and Mr Uccello have moved on from their relationship and I am not impressed or persuaded by Ms Raslands asserted continuing 'fear' of Mr Uccello such that any fear would, in any event, be alleviated by her moving to Town F where fortnightly changeovers would still need to be effected.
A question was put to Ms Raslands on a number of occasions in cross-examination and is now a question which assumes some import in my consideration. Ms Raslands was asked why she chooses to relocate with X to Town F now rather than some three or four years ago when, according to Ms Raslands, Mr Uccello was a disinterested parent having no contact with the child? Her usual response was that she remained in City E so as to enable and then foster a relationship for X with the father. Yet, however, when she herself says that the relationship is in its developing stages, she determines to leave her residence in City E which she owns, and her business which she has established in City E, to move with X to Town F because she says she needs the support from her extended family and that she is 'fearful' of the father. Ms Raslands was singularly unable to rationalise the conundrum caused by this question.
As is common in parenting matters involving a relocation of a child, the consideration for the Court is a difficult and finely balanced one. I repeat, I am troubled on a factual platform where the father does not ask to be the primary parent of X but effectively insists on the mother remaining in the same location as him and where this delegated primary parent wants, for whatever reason, to live in Town F where her happiness must be compromised by requiring her to stay. Nevertheless, I am equally troubled by the 'rationale' that she placed before the Court for her intended move to Town F. Frankly, this mother was far from convincing in her evidence and, consequently, I find some merit in the father's Counsel’s strong submission that the mother's primary initiative in asking to move with X to Town F is to place limitations on the father's time with X and, more particularly, to thwart his ambitions to spend substantial and significant time with his daughter. This is, as all parties say, a relationship between daughter and father which remains 'a work in progress'. The mother is mature and efficient in her parenting and her own life. She has succeeded for some 29 years without the direct 'support' from her family. In any event, on her own argument, that family support remains proximate. Her own evidence does not satisfy me that she remains 'fearful' of the father to the extent that she says. With emphasis on X's best interests and that her relationship with her father is yet to fully develop, I am of the view that those best interests are served by X remaining living in the City E area.
I note, however, the family reporter’s cautious attitude as to moving forward with X's time with the father in circumstances where she has already endured a number of changes in that relationship from no relationship at all to a recent move to weekend time. However, it is the evidence of both parents that they believe X could move to block periods of a week for school holidays relatively soon. The family reporter urges a more cautious and conservative move forward in this regard and I found her evidence to be informed and child focused. I will, therefore, make orders in accordance with the statements of the father himself in the witness box, which build up eventually to a substantial and significant time arrangement with the child living five nights a fortnight with the father and nine nights with the mother and to equal time during term school holidays and, pursuant to Orders sought by the father, for a block of two weeks in January and time at Christmas.
Child’s Surname
The mother asks for the Courts’ imprimatur by way of orders to sanction a change of X’s surname from ‘Uccello’ to ‘Raslands’. With some reluctance, the mother conceded in the witness box that X has for all common usage purposes been known as ‘Raslands’ in the community including in the company of the mother, in general usage at school, and for her extracurricular activities.
The mother admits that the common usage of the child’s surname occurred without the consent of the father and hence unilaterally by the mother. Her evidence that she attempted to engage the father in this process was unconvincing.
The mother says that, regardless of the propriety of her actions, X now understands herself to be known by the surname ‘Raslands’; that she is comfortable with the use of that surname; that her peers know her by that surname; that she identifies with her mother through that surname; and would be confused if required to take on another surname.
The father's case is purely and simply that the mother acted unilaterally and that this is yet another indication of the mother's propensity to exclude him from his daughter's life and to thwart their relationship. He argues that the child is young and will adapt to common usage of his surname which, of course, is the name on her birth certificate.
The fundamental principle here, of course, remains the best interests of X as the Court’s paramount consideration[6] and that is the case regardless of the issues of fault or blame.
[6] Fooks & McCarthy (1994) FLC 92-450
It seems to me that the major competing considerations here are that, firstly, X currently identifies with the surname ‘Raslands' and as noted by the family reporter at [33], as against the father's argument that this is just one factor in the mother's course of conduct directed to limiting and thwarting his relationship with X.
The issue of the child's identity is rather unusual in this matter. Understandably, the father argues that X's identification with him and his extended family might be confused by her using a surname other than that on her birth certificate. The mother's situation is that her own given name is not and has never been ‘Raslands’. It is not her family name. It is a name that she created and assumed following an unfortunate event earlier in her life and apparently is a compilation of the names of artists or former boyfriends. As such, the only family connection for X is limited to her own mother and hence not to extended families on either side.
I take into account that the mother is the primary carer for X and will remain so.
The Full Court in Chapman & Palmer[7] made comments in respect of this issue which remain valid today and as follows:
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and it does not promote the welfare of the child. The same principle applies when the Court is asked to direct a surname be restored where change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
[7] (1978) FLC 90-510
Whilst I am satisfied that X currently uses and associates with the name ‘Raslands’ and that there might be some confusion and even embarrassment for her in the short term if she was to be known by another surname, I find the father’s argument more weighty in that, firstly, it is clear that the mother acted unilaterally in changing this child’s surname and, secondly and perhaps more importantly, I am generally satisfied that this mother is not committed to encouraging and even supporting to its potential X's relationship with her father. X is just six years of age and, in my view, will fairly quickly deal with any short term issues of change, confusion and/or embarrassment. This is the 21st century and I expect that it is not unusual for primary school age children to bear surnames other than those of their primary parent and/or even to suffer changes of surname.
I am of the view that X's best interests are served by her using the name on her birth certificate being ‘Uccello’ as both common usage and on all formal documents referencing her. I will order accordingly.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 20 November 2019
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Family Law
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Injunction
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