W and M
[2002] FMCAfam 40
•15 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & M | [2002] FMCAfam 40 |
| CHILDREN – Relocation. |
| Applicant: | D C W |
| Respondent: | M J M |
| File No: | ZD2554 of 2001 |
| Delivered on: | 15 February 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 7 February 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant: | Mr W in person |
| Counsel for the Respondent: | Ms Sivyer |
| Solicitors for the Respondent: | Sivyer & Associates |
ORDERS
That the amended application of the father filed on the 18th of January 2002 be dismissed.
That the response of the mother filed on the 6th of December 2001 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2554 of 2001
| D C W |
Applicant
And
| M J M |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing applications regarding parenting arrangements for two children E I W (N) born the 2nd of December 1993 and L D W (L) born the 1st of July 1996. Thus at the present time N is just over 8 years of age and L is just over 5 and a half years of age.
The parties to the proceedings are N and L’s parents. Their father D C W (“the father”) and their mother M J M (“the mother”).
The matter concerns where N and L will live in future and with which of their parents. The mother wishes to live with N and L in M in Queensland. Accordingly she seeks orders from the Court that would permit her to do so, including the variation of existing contact orders concerning the father’s contact with N and L. The father opposes this move of the children to M. He seeks orders from the Court that would permit N and L to live with him in Darwin.
Background
The father was born on the 23rd of May 1964. The mother was born on the 7th of March 1964. Accordingly both parties are 37 years of age. They began to live together in 1988 and married in Melbourne on the 4th of January 1992. It is common ground between them that the parties finally separated in Darwin on the 27th of May 1998 and that the marriage between them was dissolved by the Family Court at Darwin on the 29th of August 1999.
Both of the parties have lived for several years in Darwin and as a result it is common ground that the children have lived for the vast majority of their lives in Darwin. The father wishes this state of affairs to continue.
Following separation both children lived with their mother in the former matrimonial home situated at 6 S Place, R C, a suburb of Darwin. N and L also had regular defined contact with their father.
Following separation the parties were able to agree between themselves regarding the division of their matrimonial property and in respect of care arrangements for N and L. On the 27th of August, 1999 consent orders where made by the Family Court at Darwin in the following terms:
(1)That the children, E I W, born 2, December, 1993 and L D W, born 1 July 1996 reside with the wife.
(2)That the wife have responsibility for all day to day decisions concerning the children’s care, welfare and development.
(3)Subject to his work commitments the husband shall have contact with the two children as follows:
(i)Each alternate weekend with times to be arranged between the parties;
(ii)Each week on an overnight basis as agreed between the parties with the husband to collect the children from the wife, and to take the children to school or creche the following morning;
(iii)Liberal telephone contact at times agreed between the parties.
(4)That the parties keep each other advised at all times of their place of residence and a telephone number.
(5)That in the event that either party lives in excess of a hundred kilometres from each others place of residence the husband shall have liberal contact on terms as agreed between the parties.
(6)That in the event that the children are hospitalised for any reason the parties notify each other as soon as its practical, with both parties to be at liberty to visit the children on a daily basis whilstsoever they are in hospital.
(7)That the husband be at liberty to attend parent/teacher interviews at the school.
(8)The wife provide the husband with copies of school reports.
(9)That upon presentation to the husband or his solicitors the husband shall forthwith execute all documentation necessary to effect transfer in registrable form to the wife of all of his right title and interest in the property located at 6 S Place, R C, Northern Territory of Australia being more particularly described as Certificate of Title Volume 377 Folio 031 being all of the land comprised in Lot 991 Town of Nightcliff as delineated on Plan A000288 subject to the existing registered mortgage to the Bank of SA.
(10)That pending registration of transfer of the property to the wife’s sole name, the wife indemnify the husband and keep the husband indemnified against all liability to the registered mortgagee and against all liability in relation to the outgoings on the property, including but not limited to council and sewerage rates.
(11)That upon registration of the transfer of the property the wife such registration to take place within 28 days of date of orders, the wife pay to the husband a sum of forty thousand dollars ($40,000.00)
(12)That unless otherwise specified in these orders:
(i)Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of this agreement and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;
(ii)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
It seems that pursuant to these orders that the father has been having contact with N and L each alternate weekend and overnight each week from Tuesday to Wednesday morning.
The father is employed as a manager by a firm called A, which installs shade structures. A is based in Darwin but does work overseas in South East Asia as well as throughout the North of Australia. As a result of his work, the father has been required to travel from time to time. He has been employed by A for the past 11 years. He currently earns $30,000.00 per annum and is provided with a car and phone by his employers. He receives $707.17 net per fortnight. He has been regular in his payment of child support for N and L.
The mother holds a Bachelor of Applied Science and a Graduate Diploma in Education. She is a qualified physical education teacher. In 1999 and 2000 she was employed by the Northern Territory Education Department and taught physical education at D High School. She resigned from the Education Department in December 2000 and has been self-employed since.
The mother has an interest in alternative medicine. It was in order to pursue this interest that she resigned from the Education Department. She currently operates a business known as “M W NT”. This is an alternative health care practice that offers consumers in Darwin services such as aromatherapy, massage, reflexology, reiki and aura soma. It is in order to pursue business opportunities in these fields and to advance her own expertise in them that the mother wishes to relocate with N and L to M.
Applications
The father is the applicant in these proceedings. He has acted on his own behalf throughout the proceedings and has prepared his own documents. On the 15th of November 2001 he filed an application in which he sought the following orders on both an interim and final basis:
2)“I seek orders to vary the existing orders filed the 27th of August 1999 so an order can be added to restrict the children from being removed from Darwin”
The mother filed a response to this application on the 5th of December 2001. In that application she indicated that she sought the following order on an interim basis:
1)“That the wife be at liberty to travel with the two children of the marriage E I W born the 2nd of December 1993 and L D W born the 1st of July 1996 to Queensland.”
On a final basis she sought that the application filed by the father on the 15th of November 2001 be dismissed.
These competing applications for interim orders came before the Court for hearing on the 6th of December 2001. On that occasion both parties provided undertakings to the Court that neither of them would remove N and L from the Northern Territory. Subsequently the matter was fixed for final hearing on a final basis on the 6th of February 2002.
The father brought his application because the mother had sought from him permission to relocate with the children to M. This permission was declined. He was fearful that she would move before the issue could be resolved. The final hearing of the matter was expedited at the request of the mother because she had already begun to rent accommodation in M in anticipation of moving there. She also raised concerns with the Court that if the matter was not finalised expeditiously that she would lose the opportunity of taking up a position she had been offered in M. Since the matter has been listed for final hearing both parties have redefined their respective positions. In an amended application filed on the 18th of January 2002 the father now seeks the following orders:
1)I wish to vary the existing orders in place 27/08/99 so that M M cannot relocate our children away from Darwin Northern Territory.
2)That the children E I W born 2/12/93 and L D W born 1/7/96 reside with their father.
3)That the father have sole responsibility for all day to day decisions concerning the children’s care, welfare and development
4)Subject to her work commitments their mother shall have contact with the children as follows:
i)During school holidays at times agreed between the parties;
ii)When she visit Darwin at times as agreed between the parties;
iii)Liberal telephone and internet contact at times agreed between the parties.
5)That the parties keep each other advised at all times of their place of residence and a telephone number.
6)That in the event that the children are hospitalised for any reason the parties notify each other as soon as is practicable with both parties be at liberty to visit the children on a daily basis whilst they are in hospital.
7)The mother be at liberty to attend parent/teacher interviews at school
8)That the father provide the mother with copies of school reports.
At the commencement of the final hearing, counsel for the mother provided a minute of the orders that her client was seeking as follows:
That the orders made by consent on the 27th of August 1999 in the Family Court of Australia be varied as follows:
1)That order 3 be discharged.
2)That the husband have contact with the two children of the marriage E I W born 2 December 1993 and L D W born 1 July 1996 on the following terms and conditions:
i)For the whole of the Queensland June/July school holidays in Darwin;
ii)For the first half of the Christmas school holidays in Darwin such contact to include Christmas Day commencing in 2002 and each alternate year thereafter;
iii)For the second half of the Christmas school holidays in Darwin commencing in 2003 and each alternate year thereafter;
iv)For periods of up to seven days on an overnight basis in Queensland on one other occasion each year provided only if such contact is during the school term the husband shall ensure the children attend school and their extra curricula activities;
v)Phone contact or internet contact on a daily basis at a time to be agreed between the parties.
3)The wife shall have phone contact with the children on three occasions each week whilst the children are exercising contact with the husband.
4)That the wife be at liberty to relocate with the two children of the marriage to live in Queensland.
Mr W relied on the following affidavit filed on his behalf:
1)An affidavit of himself filed on the 18th of January 2002.
In addition he gave some oral evidence and was cross-examined by the counsel for the wife, Ms Sivyer.
Ms M relied on the following affidavits filed on her behalf:
1)Three affidavits sworn by herself and filed on the 6th of December 2001, the 21st of January 2002 and the 4th of February 2002 respectively;
2)An affidavit of V D filed the 30th of January 2002
In addition she gave some oral evidence and was cross-examined by Mr W. Ms D was not required for cross-examination.
Issues
The issues before the Court in respect of these competing applications seem to boil down to the following:
·In the event that the children are permitted to move to M they will obviously have less regular face-to-face contact with their father and as a result there arises the potential that the relationship between father and children will become a different one.
·Further the father is concerned that a change of residence to M will be unduly disruptive to the children in the sense that both will have to change schools and will be moved from existing friends.
·The father’s position is that the mother’s business venture in M is a speculative one and there exists the strong possibility that it may fail. As a consequence she may not be in a position to ensure that the children travel regularly to Darwin for holiday contact with their father on the basis that she has indicated to the Court she is prepared to allow. This has the potential to impact on the best interests of the children as indeed does the uncertainty surrounding her financial future. It is the father’s case that all of these are factors that militate against a relocation.
·The father argues that he is the more stable parent of the two and as such should be the one to provide a residence for the two boys.
·The mother’s position is that she has been the primary carer of the two children since the dates of their respective births and certainly since separation. She asserts that she does not consider Darwin to be her long term home. She wishes to pursue a business opportunity to work as an alternative health practitioner and trainer in M in Queensland and as the primary carer of the two children wishes to take them with her.
·The mother has given evidence that she would not consider leaving the children behind in Darwin in the care of the father. If the order of the Court was to be that the children should remain living in Darwin she would remain also and seek to continue in her role as resident parent. However she asserts that she believes that this apparent restriction on her liberty would affect her state of mind and would thus “inevitably impact negatively on the health and wellbeing of the children albeit unintentionally.” It is this potential for detriment to the children caused by the mother not being able to pursue her chosen business and career options in Queensland that is one of the central issues in this case.
·The mother further asserts her proposal for twice-yearly holiday contact, at her expense, together with whatever contact the father can arrange in Queensland and electronic contact by means of telephone and video computer link is sufficient to enable the children to maintain the current level of relationship with their father.
Evidence
The parties are very different people. Their world views and personal philosophies could not be more different. The father presented as a somewhat intense person. Although he denied having “a short fuse”, my impression of him is that he does have a tendency to lose his temper easily, especially when he feels frustrated or when he believes his rights are being transgressed. I have, however, no reason to doubt the strength or sincerity of his attachment to his children. On several occasions when presenting his case he was moved to tears.
In many ways the father could be described as a conventional person. He sees his role, both during and after the marriage as being a bread-winner for his children. He is rightly proud of his regular employment with the same firm for 11 years and his position of trust within that firm. He is a man who values work and security.
To his very great credit the father has been active in his involvement with the boys during contact periods. He has taken them bush walking, camping, fishing and particularly motor cycle riding – an activity both boys enjoy. These are activities likely to appeal to boys of N and L’s ages and are appropriate ones for father and sons to enjoy together. It seems to me that the father is very much a “hands on” father and a person who enjoys the outdoors with his sons.
In his affidavit the father indicated that the marriage between the parties failed, in his view, because of the mother “pursuing an alternative way of life”. In my view, the father is deeply mistrustful of the wife in regards to a number of lifestyle choices she has made since the parties separated. These choices include the mother’s decision to leave her secure and comparatively well paid position as a teacher and pursue her chosen career as an alternative health care professional; her decision to sell the former matrimonial home and the mother’s views regarding a number of health and dietary matters concerning the children.
The father is, in my estimation, a person of conventional views. In many ways the mother is a person of less orthodox views. It seems to me that the mother’s views have developed since the parties separated and that to some extent, particularly in regards to health practices, the mother has adopted an alternative lifestyle. It is a lifestyle of which the father disapproves and of which he is suspicious.
The mother’s interest in alternative medicine began in 1999, when she travelled to the United States of America and undertook some training in a field known as Colour Therapy. During 1999 she also purchased an alternative health practice in Darwin known as “M W, Northern Territory.” Since then she has studied massage, homeopathy, kinesiology and reflexology. She left her position with the Education Department in 2000 and began to devote herself full time to her business. Her business involves providing health care therapy to customers in Darwin and also arranging for other practitioners from interstate to present courses to interested persons in Darwin in alternative health fields. The mother has continued to advance her skills in these fields in Darwin from time to time. She has also herself travelled interstate to undergo further training courses. I accept she has developed expertise in these fields and wishes to develop her skills further.
It was while undergoing one of these courses that the mother met Va D. Ms D describes herself as a psychotherapist, educator and as the founder of the Queensland Institute of Psychoenergetics. The Queensland Institute Psychoenergetics is situated at 195 M V Road , M. Ms D has offered the mother the position of Manager of the Queensland Institute of Psychoenergetics. If the mother is able to take up this position she will assist in offering training programs at the Institute, will administer the Institute and will herself offer alternative health care treatment to customers at the Institute.
This position is available to the mother whenever she wishes to take it up and she is desirous of pursuing it. Initially it was anticipated that she would travel to M shortly prior to Christmas of 2001. However due to the actions of the father in seeking orders from this Court this has not been possible. Nonetheless the mother has already obtained rental accommodation in M in anticipation of being allowed to move there with the two children. She has rented a three-bedroom house in M which is close both to the local school and to where she hopes to work. I accept the mother’s evidence that rental accommodation in M is scarce and that she took on the lease of the property because she was fearful that she would not be able to obtain other accommodation in the event that she was permitted to relocate.
As I have already indicated, in my view, the father is deeply suspicious of both the motivation of the mother for wishing to move to M and the practical and financial implications of the move as far as it impacts on the children. Following the settlement of the parties’ matrimonial property, the mother was left in possession of the former matrimonial home situated at 6 S Place, R C. The mother has subsequently sold this property. Her evidence in this regard was that she found the burden of servicing the mortgage on the property and maintaining the garden and home itself to be “an enormous drain on my financial and emotional and personal resources.” Following the sale of the property the mother obtained rental accommodation for herself and the two children. It is the father’s position that this was a retrograde step on the mother’s part and coincided with her decision to establish her own business after leaving her employment with the Education Department. It is his view that this decision deprives the children of the security of a permanent home. The evidence seems to indicate to me that the mother’s decision to give up her employment has resulted in a significant reduction in her income.
Whilst in Darwin the mother has run courses for others interested in alternative health practice and has provided such homeopathic, aura soma, massage and other alternative health services to members of the public. She has not provided detailed evidence regarding her current financial position other than that she has said that she draws the sum of $300.00 per week from her business.
If permitted to go to M, the mother has deposed that she will continue to operate her business in Darwin. This will necessitate her travelling to Darwin on at least three occasions each year. She has not given detailed evidence as to the identity of the persons who will operate this business whilst she is in M nor given any detail as to how the business will generate income for her.
Ms D has indicated in her affidavit that the mother will receive an income from her of approximately $35,000.00 per annum if she takes up the position that has been offered to her. However this sum is not based on any contract or award. In my view there exists a considerable degree of uncertainty about what level of income the mother may expect to receive in M. Ms D deposes that the mother’s actual earnings will be determined by both an hourly rate and by reference to a contract. But no specific details have been provided. The mother will be expected to rent premises at the Institute for the services she provides to customers.
Whilst being cross-examined by the father, the mother acknowledged that her business in Darwin had not been as successful as she had wished. I accept the mother’s evidence that she wishes to travel to M because she believes that it will enhance her existing level of skills and because she believes that she will be better remunerated there. However, I do have a considerable level of doubt as to whether this will in fact eventuate. The mother has given evidence that she wishes to undergo further training. Her evidence left me in some doubt as to the precise nature of this training. However the mother indicated that it could not be done by correspondence. I am uncertain as to what level of accreditation, if any, is required by the mother to pursue her chosen calling. I am uncertain how long it will take the mother to obtain a health insurance provider number in order to enable her clients to make claims on their private health insurance for the services she provides.
The mother’s evidence is that she sold her house to “de-stress” her life and as a result “de-stress” the children’s lives. She believes that by relocating to M she will be more relaxed and as a result so will they.
It is not the function of this Court to assess the appropriateness or otherwise of any alternative health treatment. However, I accept that the mother is firmly of the view that pursuing her knowledge in these fields is of central importance to her and her personal and professional development at this time. I have some concerns that the mother, in her enthusiasm for her chosen field of endeavour, has overlooked some of the financial drawbacks of pursuing her interest. This is certainly the father’s view.
The mother lived in Darwin during the six years of marriage and for over three years since the parties separated. In her evidence she simply asserts that if she is not permitted to relocate to M that this imposition on her liberty will have adverse consequences for the two boys concerned. It seems to me that to a large extent the mother has been able to pursue her interests in alternative medicine in Darwin. She has done some courses in Darwin and has travelled interstate and overseas to pursue others. It does not seem to me that if she is compelled to remain in Darwin that she will not be able to continue in her chosen field of work as an alternative health care practitioner.
The mother deposes that the father was violent towards her during and after the marriage. On a number of occasions she commenced proceedings in the Local Court at Darwin to obtain restraining orders pursuant to the Northern Territory Domestic Violence Act. However she did not pursue these applications to finality and no actual orders have ever been made by the Local Court. I was provided with a copy of an application for a Domestic Violence Order which was made by her on the 22nd of December 1999. I was also provided with a Northern Territory Police Incident Report for an incident that occurred on the 21st of December 1999. The most recent incident of which she complains occurred in December 1999 and related to the father’s Christmas contact to N and L. It seems that there was an unfortunate dispute between the parties regarding the arrangements for this. I accept the mother’s evidence that the father acted inappropriately during this incident and she was frightened of him. The father was threatening and abusive. I also accept that on prior occasions in October of 1997 and early 1999 there were other incidents that caused the mother to be frightened of the father.
The incident of October 1997 occurred when the parties where still in the process of separating from one another. The father choked the mother. However the mother acknowledges that she had lunch with the father after the incident and that indeed they attempted to reconcile. It was not necessary for the mother to seek any medical treatment. I accept however that she was caused bruising by the actions of the father and was frightened of him.
In respect of the incident in early 1999, I accept the mother’s evidence that the father threw a tennis ball at her. The tennis ball did not strike her but caused her to become fearful. None of these incidents does the father any credit and each does indicate that he has a hot temper.
The mother asserts that it was because of domestic violence between her and the father that she left the relationship. It does not seem to me that these incidents have had a detrimental effect on the two children concerned. Certainly the mother has not attempted to restrict contact between the father and the children as a result. To her very great credit the mother acknowledges that both boys should have and should maintain a strong relationship with their father.
The mother asserts that when the original consent orders of the Court were made on 27th August 1999 that the father agreed to her relocating to Melbourne with the two children. She bases this assertion on the fact that order 5 of the Consent Order speaks of the father having contact in the event that either party lives over 100 kilometres away from the other. I do not accept this evidence. By implication, she says it was envisaged that she could move from Darwin with the children.
I do not accept this. The father has asserted and I accept his assertion, that the children remaining in Darwin and he having regular contact with them, was a matter that he regarded as being of the highest importance and one which he regarded as being not negotiable at the time the consent orders were made.
It is apparent to me that there continues to be a high level of tension and mistrust between the parties. Notwithstanding this mistrust, the father has continued to have regular contact with both children. There is nothing in the evidence of either party to indicate that this contact has not been productive for the children. However, as I have already indicated, the parties continue to have very different philosophies and life styles, particularly as exhibited by the father’s scepticism and the mother’s belief in alternative medicine. One example is demonstrative of the gulf between the parties is this regard. The mother deposed that in her view, at the time of the separation, both children suffered a wheat and dairy intolerance. For that reason, she wished them to be on a wheat and dairy free diet. The father did not respect the wishes of the mother in this and was happy to feed the children WeetBix and milk during his contact periods. Indeed took pride in so doing.
As I have already indicated, it is not the function of this Court to assess the evidence in regard to the efficacy or otherwise of any alternative health practice. However I am satisfied that the mother has appropriately treated both boys in respect of all their health problems and that both are in good health and are well cared for by her.
To his great credit the father acknowledges that Ms M is a good mother and that both boys are closely bonded to their mother. He also categorises both children as outgoing and loving children. I accept his evidence that he and the mother went out of their way, following separation, not to disrupt the boys and to insulate them as far as possible against the arguments that occurred between the parties.
The father has recently re-partnered. His partner L S did not give sworn evidence in these proceedings. Accordingly I have no means of assessing the degree of her bond with the children.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for N and L.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.
The law to be applied, and the approach to be taken, in cases where a party with whom the child resides wishes to relocate with the child are summarised by the Full Court of the Family Court in A v A 2000 (FLC) 93-035. The approach to be taken is as follows:
a)The best interest of the child is the paramount consideration.
b)That is not to say however that this is the sole consideration. In particular the Court should recognise the importance of a person’s right to freedom of movement and to organise his or her life as he or she wishes.
c)Neither party bears an onus. That is the mother does not bear any onus of having to persuade me that I should make the orders she seeks permitting N and L to live in M with her nor does the father have any onus to persuade me to the contrary.
d)In coming to my decision I should be guided by the principles set out in section 60B of the Family Law Act and in determining what the best interests of the child are should be guided by the criteria set out in section 68F(2) of that Act.
e)I am required to look at and compare the two competing proposals, that is on the one hand the proposal by the mother that N and L should live with her in M and on the other the proposal of the father that N and L should remain in Darwin with either him or the mother so that he may have regular contact with them. In this respect I am not bound to follow either proposal precisely and I am at liberty to devise a regime which may not be as sought by either party but which I consider to be in N and L’s best interests. The proposal of the mother necessarily involves N and L having substantially less face-to-face contact with their father than he presently enjoys.
Discussion
The competing proposals of the parties and the implications of those proposals are as follows. In the event that the mother relocates N and L to Queensland they will have significantly less face-to-face contact with their father. I am satisfied that the relationship between N, L and Mr W is a close and loving one and that the boys derive much from it. It is Mr W’s position that due to the nature of his employment, it is difficult for him to plan long holidays in advance and as a result it may not be possible for him to have contact with the children at the times proposed by the mother in the event she moves to M.
I accept that the mother will not move to M without N and L. She would not willingly abandon her role as their primary carer. If it came to a choice between remaining in Darwin with the children and going to M alone, she would choose to remain in Darwin.
As his application stands, the father seeks residence orders in respect of N and L enabling them to live with him in Darwin. In my view, this is not a realistic proposal. The father has some criticisms of the mother, particularly as regards her personal and financial stability. He is also critical of some aspects of her supervision of the boys, particularly in the R C and N malls were she has worked from time to time and where the children have gone and from where apparently the boys’ bicycles were stolen. However these concerns were raised by the father at a late stage and only in response to the mother’s application for relocation. In my view, the father’s concerns are not made out. The mother’s life style and interest in alternative medicine may not be orthodox or to the father’s liking, but in my view, there is no evidence that the children have not been properly cared for by the mother. I accept the mother’s evidence that she does consult orthodox medical practitioners in respect of the children when the need arises. There is no evidence that any of her treatments or preferred dietary regimes for the children have caused them any harm.
In addition the father has, in my view, failed to provide adequate evidence to support his application for the change of the children’s residence. In particular, there has been no evidence from Ms S, the father’s new partner, who if the husband’s application was successful would assume a substantial role in the care of the children.
Accordingly the two situations I must contrast and compare comprise the situation that would prevail if the boys are permitted to move to M with their mother and the situation that would prevail if the boys are not permitted to move to M but remain in Darwin in the mother’s care. A situation that could be described as the status quo.
The mother asserts that this restriction on her liberty would have implications for her long term ability to care for the children. She says that she would be unhappy and frustrated at not being able to pursue her long term career goals and as a result her ability to care for the boys would suffer, to their detriment.
It is also the mother’s position that if she is compelled to remain in Darwin she would be forced to obtain alternative accommodation and would have been put to the unnecessary expense of renting accommodation in M.
These are, I believe, the competing proposals that I must evaluate against the criteria provided by section 68F(2) of the Family Law Act. I must remember that all children have an entitlement to regular contact with those that are significant in their lives, particularly their parents. I must bear in mind that N and L’s welfare is my paramount concern. However, I must also remember that I am deciding this case in the context that the father and mother, as Australian citizens are members of a democratic society which recognises the right of people to move freely and live where and how they choose.
Section 68F(2) factors – determining the best interests of the children
a) The children’s wishes
No family report was prepared in this matter. The father asserts that both children have indicated to him and to others that they are distressed at the prospect of moving to M with their mother. On the other hand the mother asserts the children are enthusiastic about the move and are looking forward to it.
Both children are still young. It seems to me that the children are in a situation where they have mixed loyalties to each of their parents. They are placed in the invidious position that whatever indication they give as to their preference they will inevitably cause upset to the other parent concerned. Accordingly in my view there is no strong evidence either way as to the children’s wishes.
Moreover given their level of maturity, I do not believe that even if they had expressed a strong wish that such a wish would have been strongly determinative matter in this case.
b) The nature of the relationships between the children, their parents, and other significant people
In my view, the evidence is clear that the mother has been the primary care giver of the two children both before and after separation. As I have already indicated for this reason I do not believe that it is in N or L’s best interests for there to be a change of residence parent.
I also believe that both children share a good relationship with the father. As I have found he is a “hands on” father who has endeavoured to maintain his relationship with the children in spite of his separation from the mother. I accept that he has gone to great lengths to ensure that each of his weekend contact periods with the boys is filled with interesting activities in which the three of them can engage. I accept that the father will be devastated in the event that the children are permitted to relocate to M.
However, I also accept the mother’s evidence that she has done the “hard yards” in respect of the care arrangements for the children since separation. By this I mean that that she has arranged such things as medical appointments for the children and regularly attended parent/teacher nights. She has always been available for the less glamorous aspects of parenting. I also have no doubt that she has done the majority of parenting since the parties separated. On any consideration of the evidence this is a significant matter.
I was impressed by the evidence of both the father and the mother that they have to a large extent endeavoured to insulate the boys from the dispute between them. As a result the good relations between L, N and their father have been maintained although relations between the father and mother are far from cordial.
I do not believe that this a case where the mother seeks to move away from the father in an attempt to subvert the relationship between father and children. In my view, the mother’s wish to relocate to M is genuinely held. That is not to say that I do not have concerns about her move to M. In my view, her evidence regarding her career prospects in M was not particularly convincing. I am not persuaded that she will be significantly better off financially there. In my view, there is a great deal of uncertainty about what precise income she will earn in M and about whether or not her business arrangement with Ms D will be successful. I agree with the father’s assessment that the venture is to a large degree speculative. It seems to me that the mother has not closely thought through what are the financial implications of the move in the long term. I must consider the potential benefits of the mother’s move to M when contrasted with the possible consequences for the children of the relocation.
c) The likely effects of any change in the child’s circumstances
Clearly if the mother is permitted to relocate to M with N and L, this will mean a substantial reduction in the current level of contact the boys enjoy with their father. I am concerned at the possible effects on N and L of prolonged separation from their father. They have been having regular contact with their father and the proposal that this be reduced to possibly twice per year is a significant and untested change. I am particularly concerned in respect of L, given his current age of five and a half years.
I am concerned that the change in circumstances may substantially affect the relationship both boys currently enjoy with their father and that it may have possible long term adverse consequences for that relationship. This is particularly so when I come to consider the practical difficulties associated with the boys having contact with their father in accordance with the mother’s proposal.
I accept that the mother will be disappointed if she is not permitted to relocate to M. She will also lose a significant amount of money she has already expended in respect of accommodation in that town which she will not require if compelled to remain in Darwin. If she is forced to remain in Darwin she will have the inconvenience of finding fresh accommodation for herself and the children. To a certain extent this is a difficulty she has brought on herself by making arrangements to relocate before she had the imprimatur of this Court to do so.
It is the central aspect of the mother’s case that the disappointment that she will feel at having to remain in Darwin will inevitably affect her ability to properly care for N and L. In the context of these proceeds it is an easy assertion to make. I am not necessarily so easily convinced as to its truth. The mother deposes that Darwin is not her home, as I understand it she is originally from Melbourne. Nonetheless she has lived in Darwin for many years and it seems to me that she has developed business connections within the alternative health community in Darwin. Nor has she provided evidence of any close familial connection she has in M. I am not convinced that her remaining in Darwin will preclude her from continuing to pursue her interests in alternative health care. Similarly I am not persuaded that her remaining in Darwin will prevent her necessarily from developing her skills in this field.
As I have found the mother’s proposals for the future and in particular her arrangement with Ms D are somewhat amorphous. For example the mother is not able to say with any particularity what her income will be in M, what courses she wishes to pursue and in the long term what formal qualifications she wishes to obtain. I understand that the field of alterative medicine is to a certain extent in its nascent stages of development in this country. Nonetheless I must consider these matters in the context of what orders should be made to ensure that the best interests of the children are met.
The mother did not strike me as a person who was not adaptable or who would not be able to deal with a setback in terms of her professional career. On the contrary, in the past she has been able to make radical changes in her life. For example she left the Education Department and sold her house in order, as she put it, to live a “stress free life.”
If the mother is not permitted to relocate to M she will nonetheless have the solace of being able to pursue her career in Darwin, albeit not in the same manner that she would have wished.
I am not convinced that compelling her to remain in Darwin will have the consequences she predicts in terms of her ability to care for the children. She seemed to me to be a dedicated and capable mother who would not allow a personal setback to compromise her care of the children.
d) The practical difficulties associated with contact
The father is a working person who is in receipt of a modest income of $30,000.00 per annum. After payment of child support he receives a net income of $707.17 per fortnight.
As I have already indicated there is a high degree of uncertainty regarding the mother’s future financial position. At the present time she draws the sum of $300.00 per week from her business. Her further evidence was that greater sums could be drawn by her if the need should arise. She conceded in her evidence that her business in Darwin was not as successful as she might have wished. She has sold the former matrimonial home in Darwin in part to relieve her of the obligation to pay a mortgage.
Her evidence is that she would travel regularly each year to Darwin in order to oversee her business here. No evidence was provided as to her exact relationship with the business once she has relocated to M. However I understand she would bring her massage table with her and would be available to treat her Darwin clients during the times she is in Darwin. She has purchased a comparatively new motor vehicle in order to travel to and from M and Darwin. I accept her evidence that the two boys enjoy car travel. Nonetheless if the children were to travel to and from Queensland by car this would necessarily occupy a significant portion of each school holiday period.
It also seems to me that in the event that the parties decided that the children should travel by air for the purposes of contact that there is some uncertainty about the future capacity of both parents to pay for the necessary air tickets. The mother has said that she will pay for the travel expenses. However this of course depends on her level of income in M.
Further I accept the father’s evidence that due to the nature of his work he does have difficulty in planning his work commitments in future and so his holidays in advance. It may be difficult for him to get holidays to coincide with the times that the children are scheduled to come to Darwin during school holidays. However I would expect that he would at least try to take holidays at these times.
Initially the mother proposed that she would travel to Darwin on three occasions each year. She has now indicted that she could only accommodate two visits per year.
Accordingly I find that the practical difficulties and expense in respect of the mother’s proposals for contact are considerable and as a result I have grave concerns that if I permit the mother to relocate to M that the contact she proposes will necessarily occur.
e) The capacity of each parent to meet the children’s needs
In my view there is no evidence to indicate other than that each parent is capable of adequately providing for the needs of the children, including their emotional and intellectual needs. In reaching this conclusion I note that the mother is the primary carer of the children and has been so for the period since each of the children was born. However the mother has not sought to restrict the father’s contact with the children.
f) The children’s maturity, sex, background and other characteristics
Both children are very young, especially L. I am concerned, given their ages, at the mother’s proposal to change an arrangement whereby the boys have had regular weekly contact with their father. In my view, it is not a case which, given the age of the children concerned, holiday contact taken at twice yearly intervals would readily compensate for this change of arrangement.
Otherwise I do not think that either child has any special background or characteristics that are relevant for consideration under this particular subsection.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
As I have found there is evidence of a number of violent altercations between the father and the mother. The incidents each occurred at the time of the parties’ separation and when there was a dispute regarding Christmas contact. On each occasion I accept that emotions were running high. I have found that the father is a person with a “short fuse”. It seems likely to me that he would react in a volatile manner if he became upset. This is not to excuse his behaviour in any way. However it seems to me that his outbursts have related to periods when he was under a deal of emotional stress. As I have already said, I am impressed with the commitment of both parties to insulate the boys from the disputes that have from time to time occurred between the them. Accordingly I do not believe that the incidents of violence between the parties have long term implications in so far as both N and L are concerned.
h) The attitude to the children and the responsibility to parenthood
I am impressed by the attitude of both parties towards their responsibilities as parents. As I have found they are very different people and as a result have very different parenting styles. Their fundamental world views are different. Notwithstanding this they have both endeavoured to make themselves available to their children. The father has endeavoured to involve the boys in activities in which he is interested and which are likely to appeal to boys of N and L’s ages. These activities include camping, bush walking, fishing and motor cycle racing. In short the boys enjoy an active and outdoor lifestyle with their father and indeed with their uncle J W.
The mother has very different interests in life. She seems to me to be a more contemplative person. As I have found she is the person who has consistently discharged the responsibilities of parenthood in respect of the children’s educational and health needs.
i) Family violence involving a child or member of the children’s family
I have addressed this topic under heading (g) above.
k) Where it would be preferable to make an order that would be least likely to lead to the institution of future proceedings
Finality is desirable in children’s cases. A decision has to be made between the competing proposals of the parties. In some respects making an order which would enable the mother to relocate would minimise the risk of further litigation. On the other hand in my view, there exists the real possibility that if the mother is permitted to relocate to M that there will be further proceedings regarding contact due to the logistical difficulties that I have already identified. Notwithstanding these matters I do not believe that in the context of this case the possibility of further litigation is a significant matter.
Conclusions
The present case presents a difficult problem. It is a problem that is present in all relocation cases. It was summarised by Kirby, J in AMS v AIF 24 famLR 756 at 783 as follows:
“ The problem stems from important values that the law upholds and which sometimes come into conflict. On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent while it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.”
In this case the Court must consider the best interests of N and L as its paramount consideration. In so doing the Court is not obliged to ignore the legitimate desires and interests of Ms M in wishing to move to M. Rather the Court must evaluate the factors for and against the move from the children’s perspective. If the Court is ultimately of the view that the best interests of the children concerned are served by them remaining in Darwin, then Ms M’s entitlement of freedom of movement must give way to the children’s best interests. This is a difficult and finely balanced case.
There is no universal rule that the residence parent is obliged to reside in close proximity to the other parent so as to facilitate contact. However the touchstone for the ultimate decision, as I have indicated, must remain in the best interests of the child and not the wishes and interest of the parents.
In the overall context of this case it is of great importance that the Court consider the adequacy of the contact proposals that Ms M has put forward in the event that she is granted permission to relocate.
I must bear in mind the right of N and L to regular contact with their father in the event that the two children are no longer living permanently in close physical proximity to him. In my view this is one of the central issues in the matter.
I am satisfied that the mother’s reasons for wishing to locate are genuine and not motivated by any desire on her part to reduce the input of the father in N and L’s lives. On balance, I am satisfied she would be happier and more content in M and her greater state of happiness would be in the children’s best interests. However, I am concerned as to the impact that such a move will have on the father’s relationship with N and L. On any view, the mother’s proposal will constitute a radical departure from the situation the boys have known since their parents separated now well over three years ago.
The mother’s proposal for contact would involve substantial periods between the times of physical contact. I am not convinced that her proposals for video link and telephone contact are such that they will compensate for this lack of regular and frequent contact.
I am also concerned at what I see are the considerable financial and logistical difficulties in the boys having the contact that the mother envisages at her expense. In my view her career move to M is to a high degree speculative. Accordingly I am very concerned that the mother’s relocation to M will substantially affect the boys’ entitlement to maintain their relationship with their father. I am not satisfied that the mother’s proposal for contact would adequately compensate the boys for the loss of regular face-to-face contact in Darwin. This is particularly so given the ages of the two boys concerned.
In my opinion, whilst it is true that the mother will be happier and more content in M than in Darwin, there is no evidence that she would be so stressed or unhappy by being forced to remain in Darwin that there would be an inevitable impact on L and N or on the mother’s ability to properly care for them.
In my opinion the adverse consequences to N and L of having the circumscribed contact with their father that a move to M involves outweigh the benefits they would obtain by being with their mother in M. Accordingly, in my opinion, consideration such as freedom of movement must give way to the children’s best interests. For those reasons I do not propose to make orders that would permit the mother to relocate.
For those reasons the orders of the Court will be those as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date:
0
0
0