Vigano & Latimer
[2010] FMCAfam 660
•25 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VIGANO & LATIMER | [2010] FMCAfam 660 |
| FAMILY LAW – Children – relocation – impact of relocation on child’s time with father – consideration of child’s views – children’s best interests served by permitting relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Morgan & Miles [2007] FamCA 1230 Paskandy v Paskandy (1999) FLC ¶92-878 A v A: Relocation approach (2000) FLC ¶93-035 U v U (2002) FLC ¶92-112 KB & TC (2005) FLC ¶93-224 Illidge & Norton [2008] FMCAfam 1255 F & F (2008) 38 Fam LR 52 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 G & C [2006] FamCA 994 Godfrey & Sanders [2007] FamCA 102 Champness & Hanson [2009] FamCAFC 96 Tait & Densmore [2007] FamCA 1383 H v W (1995) FLC ¶92-598 R and R: Children’s wishes (2000) FLC ¶93-000 Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC ¶93-341 |
| Applicant: | MR VIGANO |
| Respondent: | MS LATIMER |
| File Number: | MLC 3997 of 2008 |
| Judgment of: | McGuire FM |
| Hearing dates: | 17, 18, 19 & 23 March 2010 |
| Date of Last Submission: | 23 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Dr Alexander |
| Solicitors for the Applicant: | Sievers Lee |
| Counsel for the Respondent: | Mr Ham |
| Solicitors for the Respondent: | Macgregor Solicitors |
ORDERS
That the orders made in the Federal Magistrates Court at Melbourne on 26 March 2009 be discharged.
That the applicant father and the respondent mother have equal shared parental responsibility for the child [X] born [in] 2000.
That [X] live with the mother.
That the mother be permitted to relocate the residence of [X] from Melbourne to Townsville in Queensland.
That [X] spend time with and communicate with the father as follows:
(a)Until [X]’s relocation to Queensland:
(i)on each second weekend between 8.30 am Saturday and 5.00 pm Sunday (but extending to 5.00 pm Monday in the event of a public holiday);
(ii)for one week in Victorian gazetted school holidays provided that the father is on leave from his employment during such periods;
(iii)such other times as agreed between the parties from time to time.
(b)Following [X]’s relocation to Queensland:
(i)during each Queensland school holiday period for one week;
(ii)in the Queensland summer school holidays 2010/2011 for a period of one week as agreed between the parties and failing agreement then commencing at 4.00 pm on 27 December 2010 until 4.00 pm seven (7) days later;
(iii)
in the Queensland summer school holidays 2011/2012
and following for two weeks as agreed between the parties but failing agreement then commencing at 4.00 pm on
27 December until 4.00 pm 14 days later;
(iv)on Wednesday at 6.00 pm Queensland time by telephone with the father to initiate the calls and the mother to ensure that [X] is present and available to accept those telephone calls and to give [X] privacy in taking the telephone calls;
(v)by Skype and e-mail or similar as agreed and arranged between the parties;
(vi)as agreed between the parties and at any reasonable time and upon reasonable notice when the father is in Townsville;
(vii)any other times as agreed between the parties from time to time.
That the mother be responsible for the costs of [X] travelling from Townsville to Melbourne return for four times each year during Queensland school holidays for the purposes of [X]’s time with the father above and should the parties agree for [X] to travel to Melbourne on any further occasions in each calendar year then the parties share the costs of [X]’s travel.
That the mother forthwith take advice from Dr R as to an appropriate and suitably qualified child psychiatrist, psychologist or other behavioural scientist as recommended by Dr R to continue in Townsville the form of therapeutic assistance given [X] and that the mother continue such therapy for [X] as recommended by the therapist until such therapist advises in writing that such therapy is no longer required and the mother provide a copy of such written recommendation to the father and that pending [X]’s relocation to Townsville that the mother continue [X]’s therapy with Dr R as recommended by Dr R.
That the father be permitted to take part in [X]’s therapy with Dr R and any other therapist at the discretion of the therapist.
IT IS NOTED that publication of this judgment under the pseudonym Vigano & Latimer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
MLC 3997 of 2008
| MR VIGANO |
Applicant
And
| MS LATIMER |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in respect of the one child of the parties who is [X] born [in] 2000 (aged nine years).
Ms Latimer and her new husband wish to relocate from Melbourne to Townsville with [X]. The father, Mr Vigano, opposes the relocation. With some minor changes, he seeks a continuation of his time with [X] pursuant to orders made by consent on 26 March 2009. In summary, those orders have [X] spending time with her father each second weekend between 8.30 am Saturday and 5.00 pm Sunday together with one week in each term school holidays and 10 days in January of each year. Those orders also provide for special days and it is simply in this respect that Mr Vigano seeks a change to the existing orders. He would like to see [X] for a full day on the Saturday following her birthday together with an extra two hours on the Chinese New Year and some time on Father’s Day in each year.
In the event that the mother is not permitted to relocate [X] to Queensland, she still seeks some changes to the existing orders. Specifically she argues for a reduction of time for [X] with her father from each second weekend to each fourth weekend and a change from the block periods of one week to shorter periods of time during school holidays although perhaps still totalling one week.
The father is the applicant in these proceedings. He brought his application in October 2009 when the mother advised him of her intention to relocate to Queensland.
Background
I make the following findings of fact from the evidence, both
in affidavit and given in court, and from my observations of the
parties and the witnesses. The findings are made on the balance
of probabilities.
The father was born [in] 1979. He is 30 years old.
The mother is also 30 years of age. She was born [in] 1979.
The parties commenced cohabitation from the date of their marriage [in] 2000.
The parties separated on 23 September 2000 and were divorced
in March 2003.
[X] is their only child. She was born [in] 2000 and about one month before her parents’ separation. She has lived with the mother ever since.
There was virtually no contact between [X] and her father from 2000 until 2008 when he brought a previous application to the Court. Interim and interlocutory orders were made in July 2008 including
an order that [X] spend time with her father graduating to alternate weekends between Saturday mornings and Sunday evenings.
As mentioned above, those proceedings culminated in the consent orders from March 2009.
The mother commenced a relationship with Mr N in 2004 and they were married [in] 2008. There are no children of that union.
The father has also re-partnered with a woman by the name of Ms T. They live together in [suburb omitted] in Victoria. Essentially, however, [X] has spent time with her father at the home of the paternal grandparents.
The father is a [occupation omitted] working in suburban Melbourne.
The mother is an [occupation omitted]. Mr N, the mother’s husband, is a [occupation omitted at the same workplace].
Neither Mr N nor the father’s new partner gave evidence in these proceedings.
The evidence is clear that [X] has been reluctant to stay with the father for protracted periods and overnight. Whilst there is agreement as to the reluctance, the parents disagree as to its cause and also as to the level of improvement, if any.
Prior to the final orders of March 2009, the mother had initiated [X] having some counselling with a Ms D. In addition, and in about mid-2009, the mother initiated [X] having sessions with the child psychiatrist, Dr R. [X]’s relationship with both professionals apparently continues.
[X] has attended the same suburban primary school throughout her education. She attends Vietnamese language school on Saturday mornings. Both parents are of Vietnamese origin.
In about July 2009, approximately four months after the final consent orders, the mother and Mr N were offered [occupations omitted] in Townsville. Those positions remain available as from about July 2010.
The evidence
The applicant gave evidence. He relied on two affidavits filed
1 October 2009 and 4 March 2010. He was cross-examined.
He adduced no further evidence other than causing to be tendered letters from [Townsville employer omitted] to the mother and Mr N and dated 23 June 2009 and 10 June 2009 respectively.
The mother gave evidence. She relied on affidavits sworn 7 July 2008, 25 March 2009, 30 September 2009 and 11 March 2010. No objection was taken to the first two of these affidavits which were quite obviously filed in respect of the previous proceedings. It is clear, in any event, that the force of the mother’s argument is set out in the later two affidavits. The mother also relied on an affidavit of Dr R, child and adolescent psychiatrist, filed 16 November 2009 and in respect of his dealings with [X]. The mother adduced evidence in the form of copies of two letters from Dr R to the father dated 24 July 2009 and 25 August 2009 and tendered those into evidence. Finally, the mother caused to be tendered a photograph of [X]’s eczema condition during the most recent summer school holidays at a time she was in the father’s care.
The Court also had the benefit of a family report from Mr G, family consultant and psychologist. That report was prepared after interviews with [X], the parties and Mr N in January 2010. Mr G also spoke with Ms D, [X]’s counsellor.
The issues
The major and underlying issue for determination by the Court
is whether the mother be permitted to relocate with [X] from Victoria so as to live in Queensland.
There are a number of connected and collateral issues for consideration and determination by the Court. They include:
a)[X]’s views as to her relationship with her father.
b)The nature of [X]’s relationships with both her parents and the configuration of time between [X] and the father that best serves her interests.
c)The effect of any relocation to Queensland on the current and developing relationship between [X] and her father.
d)
The motivation for and benefit to the mother in moving
to Queensland and the ability of the mother to facilitate
and encourage a relationship for [X] with the father should she and [X] move to Queensland.
The father’s argument
The father argues quite simply that his developing relationship with [X] will be damaged and hindered if she is permitted to relocate to Queensland. He concedes that there was virtually no relationship between he and [X] for the first eight or so years of her life. He concedes that Mr N has been the primary male role model in [X]’s life. He does not criticise Mr N. Arguably there has been improvement in his own relationship with [X]. He says that [X] would benefit by a continuing regular relationship with him as well as continuing consultation with Dr R and Ms D.
The father argues that there is no manifest benefit to [X] in moving with the mother and Mr N to Queensland and, in particular, there
are no real financial or career benefits for Ms Latimer as she claims.
There is an underlying tenor or theme to the father’s argument in that whilst conceding his almost total absence from [X]’s life for her first eight years, he also argues that the mother will not facilitate and encourage his relationship with his daughter and that this difficulty would be compounded by adding the distance from Melbourne to Townsville. Further he suggests that [X]’s own timidity and reluctance in her relationship with him can be attributed to the particularly close or even unhealthily close relationship between [X] and her mother. He cites, for example, that [X] still shares a bed with her mother.
The father argues that [X]’s extended families on both sides live in the Melbourne area. He says that she is settled and thriving at school and has strong peer group relationships.
The mother’s argument
The mother argues that her career prospects are enhanced by moving
to Queensland. She would move to work in a [omitted] rather than [omitted]. The implication is that this places her on a beneficial career path. Similarly her husband could obtain a [occupation omitted] at the same [workplace].
The mother proposes that [X] would travel to Melbourne to see her father at least four times per year with opportunities for Mr Vigano to travel to Queensland to spend time with [X].
The mother emphasises that she has been the primary, and perhaps sole, carer for [X] for most of her life. Similarly, it is the mother’s argument that [X]’s strong male relationship is with Mr N. She calls “daddy”. He has been the consistent and supportive adult male in her life. It is with him that she is bonded and comfortable.
It is the mother’s position that historical circumstances have been such that there may never be a “normal” father-daughter relationship between [X] and Mr Vigano. Nevertheless, she says that the evidence shows that she has encouraged and facilitated [X]’s relationship with her father since 2008 when he began to show an interest. She says that she has arranged counsellors and a psychiatrist to assist [X] in assimilating into a relationship with her father. I am asked to infer therefore that should she be permitted to relocate with [X] to Townsville then the mother is likely to continue to encourage [X]’s relationship with her father.
The law
The Family Law Act 1975 (“the Act”) provides no legislative assistance or framework with the notion of relocation. Neither does the Act,
as noted by Boland J in Morgan & Miles[1], explicitly prohibit relocation or apply any presumption against it. Rather, a proposed relocation
is a matter that the Court is to consider, together with numerous other considerations, in making an order which is in the best interests of the child. As the Full Court of the Family Court of Australia said
in Paskandy v Paskandy[2] at [86,456]:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[1] [2007] FamCA 1230.
[2] (1999) FLC ¶92-878.
Despite the fact that the father in the matter before me does not seek for [X] to live with him, the order that I am to make is a parenting order and, as such, I must regard [X]’s best interests as the paramount consideration.[3]
[3] Section 60CA of the Family Law Act 1975 (“the Act”).
The mother’s proposed relocation of [X] to Queensland is, however, extremely relevant to my determination as to what orders are in her best interests. The issue of the relocation must be viewed against the statutory considerations that I am obliged to reference in determining [X]’s best interests. Such a statutory and intellectual process is ultimately one of balancing those considerations in respect of the probative evidence before the Court and the proposals of the parties. Consequently, the courts have long recognised that matters involving a proposed relocation of children are among the more difficult to determine in that inevitably one or other of the parties will feel aggrieved and a sense of “unfairness” from the ultimate orders.
There is pursuant to s.61DA of the Act a presumption that the parents will have equal shared parental responsibility for [X]. Indeed, the consent orders from March 2009 set out that presumption. There was no argument at the hearing before me that the presumption should not apply or would be rebutted.
The application of the presumption obligates the Court to then consider the notions of a child spending “equal time” with each parent or, if that is not in the child’s best interests then spending “substantial
and significant time” with each parent.
These considerations are not relevant to my determination. Regardless of the proposed relocation, the father does not seek that [X] spend equal time with he and the mother. Similarly, he does not pursue “substantial and significant time” as defined in the Act at s.65DAA(3) as:
a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining [X]’s best interests, it is useful to first look at the objects and principles of Part VII of the Act and particularly so given the presumption of equal shared parental responsibility and the mother’s proposal to relocate [X] to Queensland. Section 60B of the Act provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is then obliged to reference each of the considerations under s.60CC(2), (3) and (4) of the Act. Those considerations are:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Some of these considerations will be more relevant than others dependent upon the evidence and the parties’ proposals. The mother’s proposed relocation of [X] to Queensland will be directly referenced to some of these considerations. The Act divides the considerations into “primary” at s.60CC(2) and “additional” at s.60CC(3). However, the Court does not simply perform a hierarchical exercise from start to finish. It is likely, for example, that the primary consideration in s.60CC(2)(a) cannot be determined without first referencing the additional considerations.
The law in relocation cases
Prior to the amendments to the Act in July 2006[4] the authorities had
set out a preferred approach to determining parenting matters involving relocation. In A v A: Relocation approach[5] the Full Court set out
a summary of principles to be applied in determining these matters. The High Court of Australia subsequently in U v U[6] ameliorated
the strict approach in A v A (supra). In yet a further subsequent case the Full Court in KB & TC[7] said at [79,699]:U v U
has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant
s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[4] Family Law (Shared Parental Responsibility) Act 2005
[5] (2000) FLC ¶93-035.
[6] (2002) FLC ¶92-112.
[7] (2005) FLC ¶93-224.
After some academic discussion following the 2006 amendments,
it seems clear that the general principles in relocation cases remain valid. In Morgan & Miles (supra) at [80] Boland J says:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
A helpful summary of the law and extraction of the principles
in relocation cases was made by Neville FM in Illidge & Norton[8]
at [13] where his Honour says, and repeating the same summary from an earlier judgment in F & F[9]:[8] [2008] FMCAfam 1255.
[9] (2008) 38 Fam LR 52.
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders. Drawing from the authorities listed, those principles may be summarised as follows:
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. P v P, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80], Hayne J, [171]; KB & TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]). Freedom of movement, however, takes second place to the paramount interests of the child.
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; KB & TC, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB & TC, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children.
In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
[X] is not yet 10 years of age. This consideration is grounded on the conceded fact that for eight of those 10 years the father had virtually no contact with [X]. As a result and unsurprisingly, the current relationship between [X] and Mr Vigano does not have the usual traits of a father-daughter relationship. [X]’s inclination is towards Mr N in this role.
However, whilst the current nature of [X]’s relationship with her father is certainly relevant to my consideration, it is not the determinative factor. If this was to be the case then there would be no avenue for courts to make orders assisting the establishment of new relationships for children with parents or resurrecting former relationships.
The Full Court in McCall & Clark[10] considered the statutory term “meaningful relationship”. Firstly, it is clear that there is no statutory definition of the term. The Full Court focused on two decisions at first instance being that of Brown J in Mazorski & Albright[11] and Bennett J in G & C[12]. Justice Brown in Mazorski & Albright reviewed dictionary definitions of “meaningful”. Her Honour concluded at [26] that:
[10] [2009] FamCAFC 92.
[11] [2007] FamCA 520.
[12] [2006] FamCA 994.
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or
a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not
a strictly quantitive one.
In G & C Bennett J considered whether the Court must move from
a starting point of s.60CC(2)(a) meaning that a child having
a meaningful relationship with both parents is a presumption, or rather should the Court evaluate the nature and quality of the relationship
to establish whether any “benefit” or meaningful relationship exists. Her Honour determined at [72]:
My preference is to adopt the second possible interpretation and
I do so. It is a prospective enquiry. I am therefore required
to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.Of relevance to the facts before me is the decision of Kay J in Godfrey & Sanders[13]. In that judgment, and in respect of a relocation case,
his Honour distinguished between “meaningful relationships”
and “optimal relationships” at [36] as follows:It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[13] [2007] FamCA 102.
In McCall & Clark the Full Court accepted the views of Brown J and Bennett J as set out above. The Court stated at [119] and following:
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121.In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In respect of a relocation case, it is not the task of the Court pursuant
to s.60CC(2)(a) necessarily to make orders most likely to ensure
that the child has a “meaningful relationship” with both parents. Rather, the Court’s obligation is, as always, to make orders which have the child’s ultimate best interests as the paramount consideration.
As the Full Court said in Champness & Hanson[14] 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 the 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…
[14] [2009] FamCAFC 96.
Consequently, I must look at the nature of the current relationship between [X] and the father. I must consider that future relationship. I need to look at the impact on that relationship of the proposed relocation. It is the “benefit” of the relationship rather than its mere fact that should have my main focus. As Cronin J says in Tait
& Densmore[15] at [170]:To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
[15] [2007] FamCA 1383.
Consequently, a “meaningful relationship” involves more than simply the quantity or configuration of time spent by a child with a parent. Indeed, time is only one of a number of relevant ingredients to the definition of “meaningful”.
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
This sub-section is not relevant given the facts before me.
Additional considerations
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] will be 10 years old in August of this year. She is described by both her parents and Dr R as being intelligent and articulate. The views that she has have been expressed by her to each of her parents.
The father concedes that [X] has expressed a wish to accompany her mother to Townsville. He, however, questions the rationality of such a statement and says that it may simply be a result of the extraordinarily close relationship that she has with the mother. Frankly, however, I do not find the concepts necessarily contradictory. It is clear that [X] does have an extremely close relationship with her mother. This is not surprising given the almost complete absence of her father in her life until she was eight years of age. She is described as intelligent and it is open for me to find that she is aware of and understands her mother’s wish to move to Queensland and her reasons for wishing to do so. Given that the parties agree as to [X]’s intelligence and degree of maturity, the fact that she expresses these views against a background of her stable schooling, apparent strong peer friendships, and extended family relationships in Melbourne, only leads me to add weight to what I find to be [X]’s considered views.
[X] is described by Mr G, the family reporter, in his report as follows:
33. She presented as a somewhat shy but bright, thoughtful and mature young girl, with a capacity to articulate her thoughts and feelings but in what appeared to be a quiet and understated manner.
34. It appeared to the writer that with [X]’s experience with professionals as well as being an ‘only child’, one would assume often relating with adults has aided her capacity
to reflect upon and talk about her world.Dr R was asked whether he agreed with Mr G’s description of [X].
Dr R’s response was:Yes, she is extremely articulate and intelligent. She grasps concepts including psychological concepts.
On all of the evidence before me I am satisfied that [X] is of an age and maturity so as to rationalise the ramifications of a relocation from Victoria to Queensland.
[X]’s own views in respect of her relationship with her father are also relevant to my determination. Her views were explored by the family reporter. At paragraph 40 of his report, Mr G says:
In a wishes exercise she wished that she did not have to continue to go to her fathers’ on the weekends and that everyone she really loved would stay healthy and live forever.
At paragraph 39, Mr G reports [X] as:
She appeared to feel isolated at times and that she did not belong in the way that she felt with her mother.
And at paragraph 38 of his report Mr G reports:
In an exercise with [sic] that helps children express feelings, [X] depicted herself as “happy, most of the time” including generally when she was at school. In fact this was [X]’s characterisation of her normal state, except when she was at her father’s. Here she chose cards that expressed unhappiness, stating that this was “normally” so “but sometimes okay”. She also depicted her mother as “never yelling” and her feeling of security, but a sense of anxiety with her father. She stated that when she cries he says “go wash your face” and that “normally he acts like everything is okay when things really aren’t”.
Dr R notes the close relationship between [X] and her mother. In his report on the second-last page Dr R says of [X]:
…She presents as an articulate, intelligent none year old who readily spoke of her distress at being separated from her mother overnight. It is important to note that this is not specific to spending time with her biological father. She has never stayed overnight with her grandmother and has never even been left with a babysitter. She has sometimes stayed with her maternal grandmother or maternal aunt without difficulty, but not overnight.
It is clear on the evidence that [X] has expressed directly to her father her reluctance to stay with him at times. The current and prospective relationship which she has with her father must be seen against this background and those current views.
Whereas the Act refers to the child’s “views”, it previously made reference to children’s “wishes”. I am not aware, however, that the change in terminology has affected the substantive law. Fogarty and Kay JJ in H v W[16] and later approved by the Full Court in R and R: Children’s wishes[17] stated at [92-598]:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
[16] (1995) FLC ¶92-598.
[17] (2000) FLC ¶93-000.
In summary, I am of the opinion that [X] has and is able to articulate and rationalise her own views as to her relationship with her father. Her views are understandable. The relationship is a new one for her. She must rationalise this relationship with the other important relationships in her life.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the parents or any other persons
It is the nature of [X]’s relationship with her father, and perhaps to a lesser extent with her mother, which is at the very crux of the argument before me. Mr Vigano, to his credit, acknowledges that his relationship with his daughter is not a bonded or close one. He argues, to put it simply, that to now add the further difficulty of relocation which would inevitably lessen the frequency of visits, will not assist in developing and enhancing that relationship.
The mother, following the release of the family report, appears to accept the views of Mr G that less frequency in the relationship for [X] with her father is in her best interests regardless of whether or not there is a relocation. The father of course would argue that the mother may be opportunistic in taking on Mr G’s views as her own.
No-one disputes that [X] has an extremely close relationship with her mother. Her reluctance to stay away overnight is not limited to staying with her father. It appears on the evidence that she has never stayed away from her mother and indeed still sleeps with her mother.
Mr Vigano suggests that the very fact of this extraordinarily close relationship between daughter and mother might have a causal connection to his own strained relationship with [X]. Nevertheless,
Mr Vigano, who in many ways in his evidence shows himself to be a perceptive, objective and understanding father, would undoubtedly accept that his own absence for the first eight years of [X]’s life would inevitably have contributed to the close relationship between daughter and mother, particularly in the first four or so years before the start of Ms Latimer’s relationship with Mr N.
Similarly, it is not surprising that [X] has a close and loving relationship with Mr N. Dr R describes that relationship in the first page of his report thus:
…Mr N had not previously been married and did not have any other children. He has become a very active part of [X]’s life and [X] chose to call him ‘Daddy’ after he and her mother married.
The evidence clearly shows that Mr Vigano acknowledges and understands the difficulties in re-introducing himself into [X]’s life. It is to his credit that on the evidence he has not been forceful in this process. It is his evidence that he has seen an improvement and development in his relationship with his daughter albeit that such improvement has been limited and as recently as the last summer school holidays [X] was still showing a reluctance to stay for protracted periods with her father.
The nature of a child’s relationship with both parents is, in my opinion, important and directly relevant to an issue of proposed relocation.
To put it simply, a child will in all likelihood need to be able to adjust to a change in the configuration and frequency of time with one parent if a relocation takes place. Such a change would normally be more likely to be successful if based on a strong and bonded relationship with the non-primary parent. To put it another way, there is some merit to the father’s argument that a proposed relocation with its consequent drop in frequency would be an unhelpful ingredient to a developing relationship. Nevertheless, and interestingly, the family reporter Mr G advocates a lessening of frequency for visits in any event and whether or not there is a relocation. It would seem that his conclusions are based on the concept of “too much too soon” in that [X] herself has not adapted successfully to the current regime although she has now been spending time with her father in some form or other for almost two years.
Dr R, although a witness of the mother rather than in his normal role as a forensic expert in family law matters, was asked about Mr G’s views. Dr R cautioned that in general terms less frequency of contact might have a detrimental effect on any development and positive improvement in a relationship such as that of [X] with her father.
In summary, the evidence allows me to find that [X] has an extraordinarily close relationship with her mother. This is understandable because of the history of that relationship with [X] as an only child and Ms Latimer as a sole parent. She also has a loving, beneficial and dependent relationship with Mr N. Her relationship with her father at this stage bears little resemblance to a normal parent-child relationship. Until recently he was a complete stranger to her. She has not yet assimilated comfortably into his household. There is no doubt on the evidence that the development of the relationship between [X] and her father will take some time and delicate attention to [X]’s sensitivities. The question for the Court then is the effect, if any, on this process by a proposed relocation.
Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father suggests that [X]’s reluctance in her relationship with him is directly related to her strong relationship with her mother and further that the mother is perhaps not able or willing to objectively encourage his developing relationship with [X]. It is a given that any parent wishing to relocate a child would normally be required
to convince a court that he or she is able and willing to both facilitate and encourage that child’s relationship with the remaining parent.
Against the background of the father not having any presence
in [X]’s life for her first eight years, the mother has in my opinion acted appropriately and altruistically in engaging professional assistance from Ms D and Dr R for [X]. The benefits of intervention by those professionals would be to Mr Vigano as well as to his daughter.
The agreed history of this matter shows that the mother entered into consent orders providing time for [X] with her father only a matter of two months or so after Mr Vigano’s first application and in mid-2008 which was when he himself says he first sought time with [X]. Similarly, the final orders of 26 March 2009 were also made by consent. I can infer by the mother’s consent that she encourages [X]’s time with the father.
The evidence suggests that the mother might be lacking in some of the skills necessary to positively and objectively encourage [X] to go with the father. The mother readily conceded that she is often visibly upset when [X] becomes upset at changeovers. The mother was asked in cross-examination as to what her response is if [X] is reluctant to go with her father. She readily answered:
I say “It’s okay. You’re only going for one night. You’ll be back soon”.
Whilst such sentiments are perhaps understandable in Ms Latimer given the close relationship she has with [X], the authorities are clear that the primary parent needs to do more than simply act passively in respect of a child going to the other parent.[18]
[18] Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC ¶93-341.
The mother has a firm proposal for [X]’s time with her father should she be permitted to relocate to Queensland. While she was cross-examined as to her capacity to perhaps finance that proposal, I find on the evidence that the mother is generally a person who can be relied upon to both encourage and facilitate [X]’s relationship with
Mr Vigano with the only rider being that the mother must realise that transitions are not assisted by her manifesting any distress that she may be feeling.
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 his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is obviously a significant issue. Unlike many cases that come before the Court where the remaining parent has enjoyed a close relationship with the child, this matter involves a child of almost 10 years of age and in a new and evolving relationship with her father. As a starting point it is fair to presume that developing relationships require regular contact and communication. Physical proximity allows this to happen. Relocation will, by its very nature, inevitably reduce the frequency of visits. A longstanding, strong and bonded relationship between child and parent will assist in enduring such a change successfully.
Again, however, I must also consider the nature of the current relationship between [X] and her father. The evidence is that it is not yet at a comfortable stage for [X]. She remains reluctant. She has expressed her views to the family reporter indicating her discomfort and reticence. Orders have been on foot since July 2008. Despite the father’s optimism, the evidence suggests only limited improvement has been achieved in moving towards an easy and comfortable enjoyment for [X] in her father’s care and home. Indeed, the family reporter Mr G advocates a reduction for visits to once a month regardless of whether there is a relocation.
A relocation would provide other significant changes for [X]. Whilst she would still be living in a home with her mother and Mr N, there would be a change of schools and distance put between her and her extended families. [X] attends a Vietnamese school. One of the matters in my consideration is that the mother has not even visited Townsville to assess the facilities available for her daughter if there is to be a relocation.
Nevertheless, and despite the extraordinarily close relationship between this nine-year-old and her mother, the evidence as a whole shows [X] to be well socialised. She progresses well at school. There is no evidence of any difficulties in her peer group relationships. She appears confident in her own life generally with the exception
of being separated for any lengthy periods of time from her mother.
The mother proposes regular return visits to Melbourne which would allow [X] both opportunity and time to continue her peer and family relationships.
This is not a matter in which the father has been heavily involved in [X]’s schooling and extra-curricular activities. Indeed, he has been an almost totally absent father. The relationship between Mr Vigano and [X] has thus far been limited to short and often uncomfortable visits. A relocation to Townsville will not, therefore, provide any significant change for [X] in this respect but, of course, I must consider that the move from a close proximity would take away the opportunity for those school and extra-curricular involvements to occur in the future.
Despite Dr R suggesting in an answer in cross-examination that [X] may not have the maturity at almost 10 years of age to fully rationalise the effects of a move to Queensland on her peer and family group relationships, I prefer the evidence as a whole which describes [X] as a mature and thoughtful young girl. With the prospect of regular return visits to Melbourne, I am confident that she could adapt to any change in this respect and indeed maintain her important relationships. In the abstract, a move for [X] to Queensland would have little effect on her relationship with her father. The evidence is clear that the relationship in its current form, and despite a duration of some two years, is not a strong or successful one at this stage. This is an unfortunate reality and obviously distressing for the father. However, it is [X]’s best interests that are my paramount consideration. Frequency of contact between [X] and her father is not, in my view, the basis for the current difficulties. Those problems are obviously of a more psychological, emotional and historical basis. Consequently, it does not follow that the mere fact of a relocation to Townsville together with a decrease in frequency of visits will impact negatively on [X]’s relationship with her father. To put it another way, the evidence in this somewhat unusual case is that the potential and requirements for [X] to develop a beneficial relationship with her father are dependent upon factors other than proximity of residence and frequency of visits.
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 rights to maintain personal relations and direct contact with both parents on a regular basis
The mother was cross-examined as to her ability to finance her proposed four trips to Melbourne per year. Undoubtedly the expense will be significant. Nevertheless, the proposed relocation is based on the offer of [occupations omitted] for both the mother and Mr N. [X] is the only child in the household. For the time being at least (the mother’s evidence is that she would like to have another child) there will be two incomes into the home. I do not find that the expense of four visits would be prohibitive in these particular circumstances.
There is also the practical difficulty of the mother’s proposal to consider. Townsville is in north Queensland. The travel time to Melbourne would be substantial and would realistically limit the visits to school holiday periods which, of course, occur four times per year and in accordance with the mother’s proposal. The father is a [occupation omitted]. Whilst I am not appraised of his income, I infer that he would be in a position to travel to Queensland himself on occasion if he was inclined to enjoy further visits with his daughter. There would undoubtedly be an element of inconvenience in travelling from Townsville to Melbourne as opposed to all concerned living in Melbourne. However, the mother’s proposal, if ordered, would be reasonably practicable given it would take place in school holidays.
Section 60CC(3)(f) – the capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother has been the primary and almost sole carer of [X] throughout her life. Her capacity to care for the child’s physical and intellectual needs and not impeached. The father argues that the mother and [X] may have an unhealthily close emotional attachment which impacts on his own relationship with his daughter. I have dealt with this issue above.
Mr Vigano has not been significantly involved in [X]’s life. He does not seek any residence order. His capacity was challenged in respect of his understanding and dealing with [X]’s eczema condition during the summer holidays. However, the simple fact is that Mr Vigano is learning to be a parent at the same time as trying to establish a relationship with his daughter. There is no evidence that he does not have the capacity to care for [X]. The issue in this case is more of [X] becoming comfortable in his care. On the evidence before me I am able to find that Mr Vigano also has the capacity to acknowledge and understand the difficulties his daughter has in starting a relationship as an eight year old with her father.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both parents are of Vietnamese background. It seems on the evidence that both encourage [X] in a knowledge and understanding of her cultural traditions. The mother has enrolled [X] in Vietnamese language school in Victoria. It would be unfair of the father to criticise or question the mother’s commitment to continuing [X]’s Vietnamese cultural education, whether in Townsville or elsewhere, given that he has had no input into this aspect (or any aspect) of [X]’s life for her first eight or so years. Even if Townsville did not have the facilities available to [X] in Melbourne, I am confident that the mother would continue to foster [X]’s traditional education.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
[X] was one month old when her parents separated. Her mother has been her primary carer. Whilst Mr Vigano has met his child support commitments, this has been virtually his only involvement with his daughter until relatively recently. Whilst Mr Vigano did not give any adequate or detailed response for his eight year absence from his daughter’s life in his evidence, nor was he cross-examined on this aspect to any great extent. The family report at paragraph 21 notes:
From the father’s perspective both he and the mother were very young when they met and the pregnancy was unplanned.
He states he had hoped they would be able to “make a go of it” but the relationship did not work out. Following separation, the father states he attempted for some time to continue contact with [X], but this proved difficult and their relationship lapsed. There was no contact then for a number of years.
However the fact of the father’s delay in pursuing a relationship with his daughter is not determinative of my decision. The ultimate test is, of course, as to the best interests of [X]. It is unfortunate that for whatever reasons the father chose not to form a relationship with [X] when she was young and perhaps the difficulties are now coming to the fore. Nevertheless, this is not a court which “punishes” such behaviour. In this sense I am of the opinion that the Court is a benevolent one which should encourage and assist the child forming a meaningful relationship with her father, regardless of the background, so long as there are benefits in the relationship and such a relationship is in her best interests. I have found that in a prospective sense there are likely to be benefits for [X] in continuing a relationship with her father. The fact remains, however, that the delay of some eight years will inevitably have an effect on what is now in [X]’s best interests in the sense of the nature and configuration of that relationship.
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 the child
In respect of this sub-section I look at the proposals of the parties. In my view the positions of both parents, and regardless of whether there is a relocation, are prima facie workable and not in themselves such that there would necessarily be a likelihood of further proceedings. The only question in my mind is in this aspect is whether there is merit in Mr G’s recommendation to decrease the frequency of visits for [X] with her father regardless of my determination as to relocation. That, however, is one of the options left for my consideration.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The mother argues that her relocation to Townsville for the purposes of her employment and the employment by Mr N is to her benefit and therefore vicariously to the benefit of [X]. The mother was cross-examined extensively as to the financial benefits, if any, of the move. It is proper to emphasise at this point that an applicant seeking to relocate a child need not provide compelling reasons for the move and there is no onus to make out the case for relocation. Nevertheless, the fact of the relocation must be considered within the context of the child’s ultimate best interests and I accept the submission of counsel for the father in this case that whilst there is no requirement for “compelling reasons” there would ordinarily be a need to demonstrate “some reasons” for the intended move which must be factored into the overall consideration.
Both the mother and her current husband are in employment as [occupations omitted]. Mr N is a [omitted]. The mother is an [omitted]. The pay rates for [omitted] seem on the evidence to be governed by consistent awards. The father through his counsel argues that the mother has no need to and would achieve no benefits by the relocation. She has employment in Melbourne. Her husband has employment in Melbourne. She has family in Melbourne. She has investment properties in Melbourne.
The mother argues that there are some career advantages for her which will ultimately be of benefit to [X]. The mother currently [occupation omitted]. Her specialty is [omitted]. The position at [omitted], Townsville, allows her entry to the [omitted] and by inference potential career opportunities in her specialised field.
There was some investigation in cross-examination of issues of [occupation omitted]. The mother suggested that her career opportunities in Melbourne might be limited by the fact that she did not hold a [qualification omitted]. The evidence in respect of this was unsatisfactory and I can make no findings.
It is important for my consideration to consider the bona fides of the mother’s application to relocate [X] to Queensland. Again, she need not provide compelling reasons for the move. I must also consider the notion of freedom of movement, particularly within Australia together with the availability of transport and other means of communication. In my view the notion of “freedom of movement” must necessarily be conditioned upon and subordinate to the bona fides of the proposed relocating parent and therefore the ultimate balance of the considerations towards the child’s best interests. That is, freedom of movement principles might be argued with more force if the relocating parent shows a commitment to the continuation and growth of the child’s relationship with the remaining parent. That is, if there is any indication of mala fides in the relocating parent then an argument for freedom of movement would hold little weight.
Taking the evidence as a whole, I do not find any mala fides in the mother’s relocation application. I find that she has entered into a career as an [omitted] and has properly considered her employment choices with a view to progressing in that field. I do not place any great significance in the fact that there might not be any initial significant financial advantage in she and Mr N moving from [workplace in Melbourne omitted] to [omitted] in Townsville. I accept the mother’s evidence that the intended move may have advantages in the sense of long term prospects of security in her employment.
Section 60CC(4) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent
There is some considerable overlap between the considerations under this sub-section and those in a number of paragraphs under s.60CC(3). Where this issue has not already been addressed, it is clear that on the evidence, and properly conceded by the father, that the mother has shouldered the burden for the actual care of [X]. The father has met his child support commitments but this is the limit of his participation until relatively recently. The result of this situation and the relevance in my determination is inherent in the father’s own arguments. He has not had a relationship of any practical type with his daughter until recently. To commence a relationship with a child of eight or nine years is always going to be difficult. Those difficulties have been compounded by the extraordinarily close relationship that has developed between [X] and her mother which is not surprising given the lack of any involvement by Mr Vigano. Similarly, the nature of the relationship so far as it has been in the last two years or so has been limited in its value to both [X] and Mr Vigano. He has not, for instance, reached the stage of easy participation in [X]’s general and school life. There is no evidence that [X] comes to her father easily or even voluntarily. There is little evidence that she is comfortable with her father. For example, she telephones her mother up to five or six occasions on a day. Both
Mr Vigano and [X] are occupied at this stage in the most basic tenets of forming a relationship that works and can hopefully develop. Many of the emotional traits normally associated with a father-daughter relationship have fallen on Mr N who has been admirable in his support of the mother and [X].For her part, the mother has at all times acted appropriately. She was not challenged on her evidence that she initially encouraged the relationship between Mr Vigano and his then-infant daughter. I do not find any justifiable criticism of the mother for failing to encourage or facilitate that relationship since Mr Vigano has sought time with [X] only over the last two years. The only possible criticism is that she may be too ready to show her own maternal emotions when her daughter shows upset when going to her father.
Conclusion
This has been in many ways a complex and difficult case. There are factors arguing both for and against the mother’s proposed relocation of [X] to Townsville. The strongest argument against the relocation is that the relationship between [X] and her father is a new and developing one. They currently see each other fortnightly. This would not be possible if [X] moves to Queensland. Secondly, there is the argument that the mother’s move is not necessary or crucial in respect of her career and when balanced against [X]’s developing relationship with her father. Of course, any relocation for [X] will require an adjustment for her and a removal from her stable schooling, peer group and family relationships.
To the contrary, however, I have found that there is merit in the mother’s desire to move to Townsville for reasons of her employment. That reasoning need not be compelling. I have found that she does not have any mala fides in respect of the relationship between [X] and Mr Vigano.
Whilst the Court would normally consider a strong and bonded relationship between a child and the remaining parent to be a crucial factor in allowing any relocation, the history of this matter and the nature of the relationship between [X] and her father is somewhat different than the norm. The relationship on the evidence is not what could be called a successful one. It is rather one at its most basic and fundamental level. It occurs only because of the force of court order and the agreement of the parents. There is no indication of voluntariness on the part of [X]. It is true that there have been some minor improvements but generally [X] remains reluctant in the relationship. The family reporter suggests a reduction in frequency of visits for [X] to her father in any event. Consequently, it is open for me to find, and I do so find, that the relationship between [X] and her father could continue to develop by way of its “small steps” even if there is a relocation to Townsville. Certainly, there is no evidence suggesting a causal connection between the difficulties in the relationship and frequency of contact.
The best evidence is that [X] is aware of the potential relocation and is in favour of it. I have found that she is an articulate and intelligent child and would therefore be able to comprehend the ramifications of such a move.
I am satisfied that the mother would not rely on the fact of distance or difficulties in travel to thwart any developing relationship between [X] and her father. On the mother’s proposal, [X] would still be able to see her father on a minimum of four times per year with the prospect of further visits if the father was to travel to Townsville. However, as I have said, I do not consider frequency to be the crucial element in the equation towards a conclusion of a successful relationship.
Summary
In this finely balanced matter I am of the view that [X]’s best interests would be served by being able to relocate with her mother to Townsville and that the factors in support of such a move outweigh the factors militating against it. I am satisfied that the objects and principles set out in s.60B of the Act can be appropriately addressed by way of the mother’s proposal. I am satisfied that the mother has a commitment to the relationship between [X] and her father, that she will abide by court orders, and will facilitate and encourage [X]’s relationship with Mr Vigano.
The parties have previously entered into consent orders whereby they have equal shared parental responsibility for [X]. This is despite the fact that for all practical purposes the mother exercised this sole responsibility until relatively recently. This is not a matter in which the presumption would not be applicable by reason of a history of family violence. The facts have caused me to exercise my mind as to whether it might be rebutted by reason of the child’s best interests. I am of the view, however, that there is a commitment by both parents generally towards [X]’s long term welfare and best interests. Consequently, I believe that the presumption of equal shared parental responsibility is appropriate and should remain.
This is not a matter where the Court needs to consider equal shared care. The position of the father was never in accordance with the statutory definition of substantial and significant time. He effectively seeks a continuation of the final orders made on 26 March 2009 providing for him to spend time with [X] on each second weekend together with block times and one day each year during the Chinese New Year season.
Consequently, I am satisfied that an order allowing for [X]’s relocation with her mother to Queensland and the mother’s proposal for [X]’s time with her father are in [X]’s short and long term best interests. There will be orders accordingly.
Whilst in these reasons I have in general terms found merit in the proposal of the mother for [X] to spend time on four occasions in Melbourne with the father in the event of the relocation, I do not accept the scenario proposed by the mother in her response filed 17 March 2010 which in its convoluted form appears to punctuate the block periods of time made in the consent orders of 26 March 2009. Given the recommendations of Mr G in the family report, I understand the rationale of the orders sought by the mother. Nevertheless, taking the evidence as a whole, I am not convinced that there should be any substantial move from the structure of the orders made on 26 March 2009 save, of course, for the effect of the relocation. [X] will soon be 10 years of age. It is a fact that the process of engaging with her father has now been of some two years’ duration. She is and will continue to receive therapeutic assistance which is recommended by Dr R and will be a part of my orders. It is true that [X] has experienced some reluctance in staying for protracted periods with Mr Vigano or indeed staying away from her mother overnight. As she matures, becomes more confident and with the support of her mother I expect these issues will be addressed. Similarly, however, her reluctance is manifested at changeover times. Again, I emphasise the evidence of the mother when she candidly but perhaps naively gave an answer in cross-examination along the lines of saying to [X] “you’ll only be going for a short time and will be home soon”. Quite frankly, I am of the view that this would send the wrong message to the child. Consequently, and on balance, I do not favour any arrangement which adds further changeovers and disruption for [X]. That is, I am of the view that there should be orders which encourage [X] to settle with her father rather than give her the impression or anticipation that she would be “visiting” for a short period before returning to her mother. The one concession I do make on account of the findings above is that the time [X] spends with her father in the next summer holidays be for one week duration but thereafter for a block period of two weeks.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 25 June 2010
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