Walcott & Walcott
[2020] FamCA 218
•8 April 2020
FAMILY COURT OF AUSTRALIA
| WALCOTT & WALCOTT | [2020] FamCA 218 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – relevant legal and factual considerations – best interests of the child – mother wanting to move back to New Zealand where she is a citizen – mother wanting to move for reasons of her own support network, study and employment opportunities and mental health – one psychologist called for the mother could not be relied upon as an expert – young child involved – where there is risk that the father’s relationship will be diminished if not extinguished during the developmental stage of the child’s life if relocation ordered – mother’s application refused. |
| Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Amador & Amador (2009) 43 Fam LR 268 AMS & AIF (1999) 199 CLR 160 Banks & Banks [2015] FamCAFC 36 |
| The Honourable Justice Richard Chisholm, To What Extent Can The Court Make Orders That Inhibit a Parent's Right To Relocate? Sampson v Hartnett (No 10) (2008) Australian Family Law Bulletin 934 |
| APPLICANT: | Ms Walcott |
| RESPONDENT: | Mr Walcott |
| FILE NUMBER: | MLC | 738 | of | 2019 |
| DATE DELIVERED: | 8 April 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 6 & 7 January and 7 February 2020 |
| DATE OF FINAL WRITTEN SUBMISSIONS: | 10 March 2020 |
SUBMISSIONS RECEIVED FROM:
| COUNSEL FOR THE APPLICANT: | Mr R Hoult |
| SOLICITOR FOR THE APPLICANT: | Waters Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr W Henwood |
| SOLICITOR FOR THE RESPONDENT: | Randles Cooper |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Hoult |
| SOLICITOR FOR THE APPLICANT: | Waters Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Randles Cooper |
Orders
The applicant’s application filed 23 January 2019 to relocate to New Zealand is dismissed.
By 4pm on 22 April 2020 the parties are to email to my chambers minutes of the ongoing parenting orders in this proceeding.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walcott & Walcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 738 of 2019
| Ms Walcott |
Applicant
And
| Mr Walcott |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding was commenced in January 2019, it was heard at trial in January 2020, the last final submissions were received in March 2020 and these reasons are delivered in early April 2020, demonstrating that with cooperation, family law litigation can be conducted from filing to judgment with the expedition that parties are entitled to expect.
The mother of X born in 2019 seeks orders permitting her to relocate to New Zealand where she was born in 1984 and lived until moving to Australia in September 2011. X’s father has opposed the mother’s application.
Property issues in this proceeding have been resolved. If this relocation application is refused, ongoing parenting orders need to be made.
In support of her application for relocation the mother relies on several propositions. She says –
a)her mental health is in decline while she remains in Melbourne;
b)she has a better developed circle of family and friends to provide support in New Zealand than in Melbourne;
c)she will find it easier to pursue a degree in marketing in New Zealand; and
d)her work prospects are better in New Zealand than they are in Melbourne.
In resisting this application the father says, in essence, that he will be denied a meaningful relationship with X if relocation is ordered.
The family consultant who gave evidence in this case recommended, in essence, that any consideration of relocation be deferred until X turns five years of age.
Synopsis
For the reasons that follow, in my judgment this relocation application must be dismissed. I am not persuaded that relocation of the child and the mother will promote the child’s best interests, notwithstanding the mother’s wish to be nearer her family or her wish to further her education or her employment prospects.
Relevant factual matters
Before going to the matters I am required to consider on a relocation application, it is utile to record certain matters that are not in dispute.
The mother was born in 1984 in S City, New Zealand. She arrived in Australia in September 2011. She is not a citizen of Australia. She said in her affidavit sworn on 10 December 2019 that her status as a person without Australian citizenship impacts upon her ability to receive government benefits. She said she and the father commenced dating in March 2012 or thereabouts, they commenced co-habitation in February 2013 or thereabouts, they married in 2014, they separated in mid October 2018 but they are not divorced.
The father swore an affidavit in this proceeding on 20 December 2019. So far as is relevant to this application he stated –
a)he is 35 years of age;
b)he hold an economics degree and has finance qualifications;
c)he operated a business known as L Business the owner of which is L Pty Ltd (although he did not say who the directors and shareholders of that company were); and
d)he and the mother commenced dating in February or March 2012, they commenced cohabitation in or about February 2013 and they married on 5 December 2014.
He said the mother left full time employment in November 214 and worked causally between July and October 2018. He said the mother has previously worked in the field of residential property management and has no difficulty in finding employment in that field in Melbourne.
He mentioned early in his affidavit that he was removed from the family home by armed police after which he was placed in a cell in Suburb W police station before being interviewed then released with an intervention order.
In support of her relocation application the mother relied on her own evidence as well as the evidence of Ms D, Ms F and Mr G. It is necessary to go to the evidence of each.
The mother made two affidavits, one of which has already been mentioned. The second affidavit, sworn 2 January 2020 was largely responsive to the father’s affidavit. Ms D gave evidence in the capacity as a psychologist. Mr and Ms F are the mother’s mother and the husband of the mother’s mother, respectively, that is to say, X’s maternal grandparents.
All witnesses mentioned above were cross-examined.
A convenient starting point is the mother’s evidence. Relevantly paraphrased, she said in her affidavit as follows –
a)when the parties married the father knew the mother wanted to move back to New Zealand and throughout their marriage they discussed it;
b)the father and the mother commenced to search for a property to purchase after their son was born;
c)they offered (unsuccessfully, as it happened) to purchase a property in H Town, near S City, New Zealand for over $1.5 million; and
d)on 21 December 2018 the father sent an email to the maternal grandfather “agreeing to the relocating to New Zealand with X”.
Pausing there, the mother was by the evidence in paragraph 16(d) hereof endeavouring to set up some basis to later contend that the father had agreed to the relocation and that he should therefore be held to that agreement or that he should be estopped from denying his agreement to relocation. For reasons that are addressed in the passages below, a relocation order is a parenting order for the purposes of the Family Law Act where the governing legal concepts are the best interests of the child rather than some alleged antecedent agreement. In other words, irrespective of the arrangement reached, in a relocation application the court must be persuaded that it is in the best interests of the child to make the order irrespective of the parents’ consent to do so. If evidence exists that it is not in the best interests of the child to make a relocation order, the parents’ consent to the making of one is wholly irrelevant.
Returning to the wife’s narrative of events, she deposed to the child visiting the maternal grandparents on several occasions between 2104 and 2018. Some of those visits were as a three member family while during other visits the mother and child travelled without the father. Additionally, the mother said –
a)she never considered she would remain in Australia long term;
b)she was caused anxiety and upset by thinking she may be required to remain in Melbourne as a single parent with no income or employment benefits, with her expenses exceeding her income, with no family or friendship support and no ability to upskill or train for a better future;
c)she has been taking tablets for depression;
d)her parents have visited her in Melbourne on 16 separate occasions in the period between 18 October 2018 and 11 December 2019;
e)over the last year, her mother had spent 252 days in Melbourne and 113 days in S City;
f)she has no family in Melbourne consequent upon her aunt and uncle returning to rural Victoria;
g)she has not worked since separation;
h)she is the child’s primary carer;
i)she receives Family Tax A & B and some childcare subsidies;
j)in Australia she is not entitled to fee-help and she is not eligible for an Australian student loan whereas she would be able to seek both in New Zealand; and
k)she is reliant upon the father for financial assistance.
Pausing on the last point, that is to say her financial reliance upon the father, mid way through the trial of this relocation application counsel for the parties handed me a minute that recorded their agreement in relation to property. The minute was converted to an order that relevantly recorded the following –
I ORDER BY CONSENT as follows –
1.All payments pursuant to paragraph 3 of the orders made 29 May 2019 will cease on 6 January 2020.
2.Paragraph 2 and paragraph 7 of the 29 May 2019 orders is discharged and the husband meet the costs of Mr J and Mr K in their entirety.
3.The husband will meet all further costs associated with Mr K including his attendance at court on 7 January 2020.
4.Within seven days from the date of these orders the parties do all things necessary and direct T Company to release the monies held in trust to the wife for her sole use and benefit.
5.The husband will retain for his sole use and benefit to the exclusion of the wife his interest in P Pty Ltd and L Pty Ltd, trading as L Business.
6.Within seven days from the date of these orders the wife will sign all documents required to transfer her shareholding in P Pty Ltd to the husband and resign as a director of P Pty Ltd.
7.The husband will indemnify and keep indemnified the wife from any liability arising from the business L Business.
8.The husband will indemnify and keep indemnified the wife from any loan funds he has received from his parents, Ms B Walcott and Mr C Walcott.
9.The husband shall pay to the wife $55 000 (“the payment”) in accordance with paragraph 10 hereof.
10.The payment will be divided in two instalments –
a.$30 000 to be paid within 14 days (the first payment) from the date of this order (first payment date); and
b.$25 000 to be paid on or before 29 November 2020 (the second payment) of the date of this order (second payment date).
11.In the event the husband fails to make the first payment, the husband’s interest in the business L Business is to be placed on the market for sale forthwith and the following is to occur –
a.within 14 days the parties will agree upon a business selling agent and in default of such agreement the wife will select the business selling agent within 21 days;
b.the parties shall agree on a price to sell the husband’s interest in L Business and in default of agreement the business selling agent shall nominate a selling price;
c.the proceeds of sale of the husband’s interest in L Business are to be applied;
i.first, to pay all costs, commissions and expenses of the sale;
ii. second, the balance to be paid as follows –
1.the wife to receive balance owing to her of the payment plus interest at 10% per annum; and
2. the husband will then receive the balance.
12.In the event the husband fails to make the second payment, the husband’s interest in L Business is to be placed on the market for sale forthwith and the following is to occur –
a.within 14 days the parties will agree upon a business selling agent and in default of such agreement the wife will select the business selling agent within 21 days;
b.the parties shall agree on a price to sell the husband’s interest in L Business and in default of agreement the business selling agent shall nominate a selling price;
c.the proceeds of sale of the husband’s interest in L Business are to be applied;
i.first, to pay all costs, commissions and expenses of the sale;
ii.second, the balance to be paid as follows:
1.the wife to receive balance owing to her of the payment plus interest at 10% per annum; and
2.the husband will then receive the balance.
13.The orders made in paragraphs 13 to 21 inclusive of these orders bind the trustee of the Q Superannuation Fund (“the fund”).
14.Pursuant to s 90XT(c)(i) of the Family Law Act whenever a splittable payment becomes payable in respect of the superannuation interests of the Husband in the Fund –
a.the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations using the base amount of $41 239.32 (provided that such base amount shall not exceed the value of the interest determined under s 90XT(2)); and
b.there shall be a corresponding reduction in the superannuation interest of the Fund to whom the splittable payment would have been made but for this Agreement.
15.The trustee of the fund do all such acts and things and sign all such documents as may be necessary so that the trustee, in accordance with the obligations set out under the Family Law Act and Family Law (Superannuation) Regulations, to better enable calculations to be made of the entitlement of, and make payment to the wife in accordance with paragraph 12 of these orders.
16.Upon receipt by the husband of a payment split notice when issued by the trustee pursuant to r 7A.03 of the Superannuation Industry (Supervision) Regulations, the husband exercises his election pursuant to r 7A.06 of the Superannuation Industry (Supervision) Regulations to request the trustee to rollover or transfer the transferable benefits as defined by r 1.03(1) of the Superannuation Industry (Supervision) Regulations to another fund of the wife’s choosing.
17.Following the steps taken by the trustee of the fund as contemplated in r 14F(2)(b) of the Family Law (Superannuation) Regulations, the provisions of r 14 of the Family Law (Superannuation) Regulations will make any splittable payments, following the action by the Trustee, non- splittable.
18.The husband executes a waiver of rights within the meaning of s 90XZA of the Family Law Act in relation to the payment split created by order 14 hereof, until the happening of any of–
a.the establishment of a separate account in the name of the wife in the Fund; or
b.the transfer or “rolling over” into another superannuation fund the payment split created by order 14 hereof; or
c.the wife satisfies a condition of release and is paid the payment split which is created by order 14 hereof.
19.The husband be and is hereby restrained by himself, his servants or agents from executing a binding death nomination in favour of any person or from doing any such act or thing would render any part of interest in the fund a non-splittable payment within the meaning of r 13 or 14 of the Family Law (Superannuation) Regulations.
20.The operative time for this payment referred to in paragraph 14 of these orders is the beginning of the fourth business day after the date of service of the agreement on the trustee of the fund.
21.Until the operative time of this order the husband be restrained by himself, his servants or agents from making application for withdrawal of any funds from his interest in the fund.
22.Following the payment of the base amount to the wife pursuant to order 12 herein, the husband forthwith on the request of the wife and/or the wife’s accountant do all such acts and things and sign all such documents necessary to resign as a trustee, beneficiary, settlor or any other office bearer of the Fund.
23.Unless otherwise specified in these orders and save for the purpose of enforcing such orders –
a.each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
b.each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
c.bank accounts be retained by the account holder;
d.insurance policies remain the sole property of the beneficiary named therein;
e.each party be solely liable for and indemnify the other against any liability in their sole name or a liability encumbering any item of property to which that party is entitled pursuant to these orders; and
f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
As a result of that resolution of property issues, the mother’s allegedly desperate financial circumstances have been ameliorated to some extent.
The mother provided loose and unspecific information between paragraphs 39 to 49 of her affidavit. It was largely aspirational and did not represent a firm proposal for the father’s time with the child.
In paragraph 50 of her affidavit the mother expressed her views of the anticipated outcome of her not being permitted to relocate. That included her uncertainty of how she will cope emotionally and financially.
She said she had been accepted to a course of study so as to acquire a graduate certificate in marketing. That course was to commence on 10 February 2020. The last of the parties’ written submissions were not even received until a date in mid March 2020. She said she has been offered a part time job at N Business. Beyond exhibiting the letter of offer of employment, she did not give any further information about the role, responsibilities of duties associated with that part time job.
The mother put in evidence the interim intervention order made on 18 October 2018.
Since separation, by agreement the child spends time with his father every Wednesday from 5 to 7pm and from 8am every Saturday to 5pm every Sunday.
The mother devoted a large amount of her affidavit to narrate what she described under a heading of her affidavit “family violence”. She traced 17 separate events from 16 April 2017 to 14 October 2018 and seemingly every argument the father and mother had in that period. As I find frequently in cases such as this, the mother put in inverted commas, or quotation marks, the words she said were used and she narrated them in that manner as if her recording of those words was a transcript of the precise words used. She did not give evidence that she took contemporaneous notes of the words used when the events were fresh in her memory. I was not prepared to accept that the mother necessarily conveyed any of the words that appear in quotation marks. I do not accept that the mother’s recall of the precise words used was as accurate as she would have a reader of her affidavit believe. Instead, by her endeavour to recite the precise words used and swear to the truth and accuracy of those words, despite the passing of so many years and the unlikelihood of her having any such precise recollection, I take the view that the mother was exaggerating the evidence she was giving. Alternatively, I take the view that the mother’s evidence on those issues was unreliable. In any event, she stated words with utmost precision and recall by putting them as direct quotes, yet in the same sentence she said that the words recited in direct-speak were the effect of the words used. It is either one or the other.
Solicitors and counsel have an obligation when preparing or settling affidavits to subject the client’s instructions to certain scrutiny so as to not put before the court misleading evidence or evidence which is untrue. Attributing to a deponent the precise, word-perfect version of a conversation when a deponent is only able to depose to the substance or effect of the words used borders on putting forward an affidavit that is misleading. That practice must stop.
The mother was cross examined by Mr Henwood of counsel. From his cross examination the more important matters that emerged were as follows –
a)the mother’s part time job offer was valid only until February 2020;
b)the mother’s proposal for the father’s time with the child if relocation was permitted required the mother to travel four times a year to Melbourne for a week each time of seven days and seven nights;
c)the mother said she hoped to do two of those four week long trips and the maternal grandmother would do the other two week long visits;
d)the mother’s proposed travel involved the father meeting all travel expenses but she said she will be earning a minimal wage whereas, so she said, the father earned over $300,000 per year plus a $150,000 bonus;
e)the mother said that the family violence that she laid out in paragraph 84 of her affidavit did not affect the child’s time with his father;
f)the child deserves to have a relationship with his father;
g)no assault preceded the making of the IVO;
h)she said she “would definitely get some degree of mental health if I was made to remain in Melbourne”; and
i)she said that the stress under which the mother is living “definitely gets put onto him” (the child) (her words).
Mr Henwood put to the mother whether her stress and uncertainty would disappear if a relocation order were made. While discursive all ill-directed, the mother’s response seemed to say that it would. The mother’s evidence on point was as follows –
MR HENWOOD: And you’re saying your move to New Zealand – that will disappear? He would be not displaying those symptoms at all?
Ms Walcott: Well, I feel like I don’t know where my life is going, so I don’t know where I’m going to live, don’t know where I’m going to work. I have no support here. Whereas, if I was in New Zealand, we would be settled, I would have work, I have got a job, we would have more routine. Whereas, at the moment, everything is just so up in the air. And he never knows what he’s doing, I never know what I’m doing. I don’t know what I’m going to be doing in a year. It’s just
MR HENWOOD: Well, your daily routine, you should know what you’re doing. You’re not working and you’re taking care of young X?
MS WALCOTT: Absolutely, but
MR HENWOOD: So you do know what you’re doing on a?
MS WALCOTT: But long term
MR HENWOOD: day-to-day basis?
MS WALCOTT: I don’t, so it’s really hard to have sort of a sense of calmness if you don’t know where your life is going.
At once it will be observed that certain assumptions were embedded in her answers. She said that in New Zealand she would have work and a job. That was not correct as her part-time role in the retail business of which she spoke was open only until February and it is now April. There was no certainty she would have a job. She conceded she had not attempted to get a job. She said the father paid the mother $600 per week for her rental expenses and $500 per week on top of that for maintenance. She said she was not sure who would look after the child if she got a job.
She said in answer to questions put in cross examination that she had made friends in Melbourne. She did not believe it was a big issue (her words) that cooperation was required in order to make the father’s time with the child work if a relocation order was made.
As for her proposal for the father to have time with the child, the mother said in cross examination that she proposed for the father to travel eight times to New Zealand per year. She disagreed with the idea that the father would need to get time off from work to make such an arrangement work. That provoked me to seek clarification of one matter. The exchange unfolded in the following manner –
MR HENWOOD: And for that proposal to work, that means he will have to get time off work for eight weeks per year. Do you agree with that?
MS WALCOTT: No, I don’t.
MR HENWOOD: Well, he will have to get there somehow, doesn’t he?
MS WALCOTT: He can work wherever. He doesn’t work in one place. He was going to work there every – he was going to live in New Zealand, so he was going to – he just needs an internet connection to work. He can work from home or wherever he would like.
MR HENWOOD: He’s subject to annual leave, four weeks per year. Do you agree with that?
MS WALCOTT: No, sorry, because we never put in annual leave. We used to travel a lot and he never even – he doesn’t – he didn’t have to do that. He just – again, he can do his work wherever he would like.
HIS HONOUR: Is he self-employed?
MS WALCOTT: So he – my understanding is him and his school friend run a business in – a side business in Melbourne. They run their own office. They have their own clients. They do everything themselves.
HIS HONOUR: Is he paid by an employer?
MS WALCOTT: He is, and there’s also a percentage of – how much money the fund makes, he also gets a profit off that. Yes, he is employed by an employer.
HIS HONOUR: But don’t most employers require you to take four years annual leave a year?
MS WALCOTT: I would think so, yes.
HIS HONOUR: Well, that’s really the purpose of this question. If that’s the regime, how is 12 weeks a year going to work if one is entitled to only four a year?
MS WALCOTT: Because he wouldn’t have to take annual leave because he can still work while he’s in New Zealand.
HIS HONOUR: But he won’t be working if he’s caring for X. He can’t do both properly, can you? Perhaps I’m missing something?
MS WALCOTT: Probably not, no.
HIS HONOUR: What was the answer?
MS WALCOTT: No.
The mother’s proposal was ambitious, if not ill-conceived. It involved the father taking eight weeks off a year, four of which was annual leave and he needed to somehow obtain another four weeks. In addition, the mother proposed for the father to pay for each of his eight trips per year to New Zealand. It must be kept in mind that the mother had settled her property settlement claims in this case.
The mother said she had suffered post traumatic stress disorder as a result of pain in her tooth. She said she was not on medication for her tooth issues. She said her anxiety was more to do with the separation than the tooth problem but she admitted her anxiety and mental health problems could not be compartmentalised and “it all just goes together,” she said.
Mr Henwood structured his cross examination so that he returned to the feasibility or otherwise of the mother’s proposal. Bearing in mind that slightly earlier in the mother’s cross examination she had committed herself to certain answers on the practicality of the proposal of which she was contending namely, that the father fly to New Zealand eight times in order to spend time with their child. The mother was asked whether she wanted the father’s relationship the child to be at risk. The exchange was as follows –
MR HENWOOD: Now, would you want that to happen – the relationship between X and his father be at risk at all?
MS WALCOTT: No.
MR HENWOOD: All right. Now, your proposal says that the father can come and visit X in New Zealand eight times a year?
MS WALCOTT: Whenever he likes.
MR HENWOOD: Yes. It’s – common sense would say, given that his work commitments – the father’s work commitments, he’s not going to get there eight times a year, is he, for seven days a week, is he – or seven time – seven days per visit? It’s not going to happen. It’s impractical. In a perfect world, fantastic. But you would agree with that, wouldn’t you?
MS WALCOTT: Well, we were going to do it, so I – that’s, sort of, what I come back to. We had already talked about it so many times
MR HENWOOD: I will stop you there? so
MS WALCOTT: But ? I think he can do it, yes.
MR HENWOOD: And – even though with his work commitments, the cost element of getting there, accommodation, you still think that’s practicable, he can do it?
MS WALCOTT: Alex and I thought it was practical, yes.
MR HENWOOD: Although you still think that’s achievable?
MS WALCOTT: I think – I think it will be – I – I – don’t get me wrong. I think it will be hard – like, it’s obviously not an ideal situation. I totally get that. But I feel like if we are really looking at what’s best for X, we could make it work. I do think it’s workable, yes.
HIS HONOUR: How will it work with the employment situation, where an employee gets four weeks off a year, that’s all? How can it possibly work?
MS WALCOTT: He could fly over Friday and then go back Monday.
HIS HONOUR: No, no. No. I’m not talking about the physical aspect. With the employment, how is it going to work?
MS WALCOTT: It will be hard, I – I
HIS HONOUR: Well, no, no. No. Don’t tell me about the difficulty. I’m asking about the concept in the totality. How can it possibly work?
MS WALCOTT: I’m not sure, your Honour.
HIS HONOUR: But you maintain that it will? I’m not trying to put you on the spot. I’m trying to understand your evidence. Is there anything you would like to tell me?
MS WALCOTT: I’m not sure. Sorry.
Her last response compounded my earlier reaction to the mother’s proposal, namely, it was not feasible or practical. It was unlikely to work. The mother herself was unable to speak to the precise detail of the proposal. She was hardily bludgeoned into her response when she said she was not sure how it would work.
It became abundantly plain that the mother’s wish to relocate bore little relationship to the best interests of her son. The following exchange made good that point –
MR HENWOOD: Look, if we get to the basics of this. The whole point about your wanting to move to New Zealand is really – it’s just what you want to do. It’s your wishes. It will make you perceivably happier. Nothing to do with X. X is doing fine right now. There’s no evidence to suggest otherwise. So the whole basis of your relocation application is, “Just because – that’s what I want to do” – that’s all. Do you agree with that?
MS WALCOTT: I’m sorry. I don’t agree with that. Look, I’m really, really unhappy here and stressed and not be able to get – find a job and struggle every day. I don’t see how that is good for my son.
Mr Henwood exposed the mother’s true reason for her application to relocate to New Zealand. After extracting admissions from the mother that the father’s time with his son could be diminished by the relocation proposed and that the father would be denied the opportunity of taking the child to school or to regularly play sport with the child, the following exchange emerged –
MR HENWOOD: And it’s your suggestion that the move to New Zealand would be a panacea for all your issues, if you like? A panacea – well, “Suddenly I move to New Zealand, I will get a job”, your mental health will improve. Is that what you’re telling this court?
MS WALCOTT: I think life in New Zealand would be a lot, lot better for X and I, yes.
MR HENWOOD: All right. But, again, it’s untested, isn’t it? You don’t know what will happen when you move to New Zealand, do you? You really don’t know. You can have plans?
MS WALCOTT: I can’t guarantee, no.
MR HENWOOD: No. And you can’t say what will happen with young X when he’s having diminished time with his father, can you? You don’t know how that would impact X, do you?
MS WALCOTT: I
MR HENWOOD: For either better or for worse. You just don’t know?
MS WALCOTT: No. I can’t answer that. Yes. No. I can’t.
That was an extremely unsafe platform on which to make this relocation application, in my view.
Mr Henwood then put to the mother that the family consultant had reported that the child was likely to experience loss and grief once the child realised he was unable to spend the previous regular time with the father upon any relocation occurring. The mother said she would not want to subject the child to that. She agreed with the family consultant’s opinion that skype was not a satisfactory replacement in the long term for real time with the child’s father.
The evidence of Ms D
Ms D gave evidence in support of the mother’s case. She affirmed an affidavit made 23 April 2019. She provided a curriculum vitae consisting of information spanning half a single A4 sheet of double spaced type. She gave her psychology registration details, her two undergraduate qualifications in clinical psychology and the date of conferral, 2013. She did not say form what tertiary institution she obtained her masters degree nor did she give any details of the studies or higher learning she undertook to obtain it. She recorded on her curriculum vitae that for one year she worked as a support worker at a V Services, she worked for one year as a provisional psychologist in Suburb W, she worked for one year as a provisional psychologist at a primary school, she worked for one year as a provisional psychologist at a secondary college and she worked for the balance of 2013 as a provisional psychologist in the outpatient unit of M University’s repatriation campus. Ms D worked in two jobs between 2015 and 2017, one at the secondary college where she worked for a year between 2012 and 2013 and the other as a clinical psychologist at her own psychology practice called R Business.
My point in reciting the details of Ms D’s curriculum vitae is that at no stage did she descend to the requisite detail to enable me to understand her experience or further study or training in any particular discipline of psychology to enable her to give expert evidence in this case or for me to receive her evidence as being evidence from a person of possessed of considerable experience or higher learning. That is one of the touchstones for the receipt of expert evidence as adumbrated by the Court of Appeal of the Supreme Court of New South Wales in Makita (Australia) Pty Ltd v Sprowles[1] and by the High Court in Dasreef Pty Ltd v Hawchar.[2]
[1] (2001) 52 NSWLR 705
[2] (2011) 243 CLR 588
Before going to the detail of the information set out in her report, it is important to explain the method of narrating the information Ms D used. She did not differentiate between information her client gave to her as opposed to information Ms D purported to state in the nature of proven fact. In some but not all instances Ms D did in fact make the distinction, yet they were few. For example, in one sentence she said –
On November 22, 2017 Ms Walcott reported that Mr Walcott had removed her access from the credit card.
She there made it plain that she was imparting information that had been given to her. Yet she was not so careful in other parts of her report as Ms D purported to accept the truth of the information she was given then she purportedly embedded some psychological diagnoses of the information she was given. For example –
In addition to this, separating from her violent husband in order to keep herself and her baby safe and the involvement of police, IVO’s, lawyers, attending multiple court procedures and psychological assessments in order to achieve this safety acted as further trauma.
That extract was to show that Ms D accepted at a factual level, having recited nothing in her report of the factual genesis for her acceptance of those facts, that certain matters were true or that certain events had in fact occurred. In that category was her acceptance as a proven fact that the applicant’s husband was violent, that the mother involved the police, that an IVO had been obtained, that the mother had attended multiple court hearings and that the mother had undergone multiple psychological assessments “in order to obtain this safety” (whatever that meant). Ms D’s willingness to unquestioningly accept as proven facts the matters narrated in the immediately preceding sentence caused me to be concerned that Ms D failed to critically scrutinise all that she was told before expressing her views based on the information she was given by the mother. She did not predicate her views on the truth or accuracy of the information she was given being demonstrated. She seemed only too willing to reach a conclusion about the mother’s mental health based on controverted or disputed facts. Under the first heading of her report Ms D wrote the following –
As expected, the experience of ongoing family violence towards Ms Walcott and her young child in addition to the process involved in separating from her abusive husband (including involvement with police, courts, lawyers etc.) has had significant negative impact on Ms Walcott’s mental health.
It is necessary to dissect that sentence. Ms D did not explain what she meant to convey by the words “as expected”. She did not say what or by whom any such expectation arose. Ms D did not say what family violence the child had been exposed to or for that matter, the mother had been exposed to. She did not say what acts, facts or things led to Ms D’s characterisation of the father as an “abusive husband”. She did not say or describe, still less did she express in any reliable professionally maintainable or psychologically supportable manner, what was the negative mental health being suffered by the mother. The first sentence of Ms D’s report under the heading “Ms Walcott’s current mental health status” was near meaningless to me.
In her report Ms D did differentiate between information imparted to her in her use of the phrase “Ms Walcott reported” a particular event.
The mother seemed to have disclosed to Ms D pain associated with a dental event. Ms D said the dental event “resulted in a diagnosis of post traumatic stress disorder”. Ms D did not say who made that diagnosis. The event on which Ms D relied was narrated to her by the mother. It was this –
Ms Walcott explained that the dentist accidentally neglected to remove one of the nerves of the tooth, then proceeded to apply a substance on top which resulted in a severe reaction, causing electric shocks to Ms Walcott’s face and severe nerve pain.
That explanation was unscientific, if nothing else. Precisely how the mother was capable of explaining what happened during a medical procedure during which she was locally anaesthetised was not given. Nor was it explained how the mother was capable of stating what the dentist who undertook the root canal procedure did or did not do. Instead, Ms D was willing to proceed with the mother’s explanation “that the dentist accidentally neglected to remove one of the nerves of the tooth then proceeded to apply a substance on top which resulted in a severe reaction”. The mother had no medical training to enable her to say what the dentist did or failed to do. Yet to my surprise, Ms D accepted all of the detail the mother gave. Ms D not only accepted everything the mother said on point as being true, but in addition Ms D embedded her own judgment of the horror of the experience and how understandably traumatic it was for the mother. That is a very long way from objectively assessing an assumed state of facts, which expert witnesses conventionally do.
Nevertheless, Ms D accepted without reservation that the mother endured an horrendous dental experience which led to the mother suffering post-traumatic stress disorder. In my view, she did not expose her chain of reasoning by which she reached the conclusion that the mother in fact suffered post-traumatic stress disorder for her stated reason, namely, the so-called horrendous dental experience. I reject her conclusion for that stated reason.
Ms D stated in her report that the mother attended a total of 16 sessions over 12 months, 10 in 2018 and six in 2019. Ms D did not say in her report that the mother consulted Ms D on each of those sessions. Similarly, Ms D described in the passive tense how “a range of tools were used to assess” the mother’s current mental health status, particularly her symptoms of anxiety, depression, stress and post-traumatic stress. Ms D did not say that she personally conducted the tests or was in any way associated with those tests. Ms D stated that an increase in the mother’s depression, anxiety and stress scores were recorded, “consistent with these observations, as well as the client’s self-report”. Yet Ms D did not say what was the client’s self-report. It seems inconceivable that Ms D would accept, at least on a sophisticated psychological level, a lay person telling Ms D that she was depressed, anxious and stressed except insofar as any such communication used the words “depressed, anxious and stressed” according to colloquialisms.
At all events, Ms D purported to record test results that in 2019 indicated that the mother’s depression, anxiety and stress were severe.
Ms D embarked upon an excursus of family violence that she concluded pervaded the marriage between the mother and father. In many respects I regarded Ms D’s conclusions as unhelpful and without forensic foundation. The following is an illustration –
However with the opportunity during therapy to reflect and develop a deeper insight and understanding of the nature of their relationship, Ms Walcott now has a better understanding of the abusive and subtle controlling behaviours which were present from the beginning and gradually escalated as the relationship progressed.
Ms D brought to that passage of her report her own judgment that certain conduct allegedly undertaken by the father was “abusive and subtle controlling behaviours”. It had not been established that the impugned conduct had in fact occurred. Yet on a proper reading of the paragraph immediately below the heading “All family violence disclosures that have been made by Ms Walcott” it seemed to me that Ms D heard the mother’s description of events then characterised for the mother what Ms D believed to be the correct construction of those events as “abusive and subtle controlling behaviours”. Without explaining Ms D’s path of reasoning in reaching the conclusion she did, I am unable to accept her evidence that the father engaged in abusive and subtle controlling behaviours.
So far as the father’s family violence to his son was concerned, Ms D relied entirely on the mother’s say-so that the father had in fact “screamed at their son on multiple occasions”. No details were otherwise given. Yet Ms D accepted unreservedly the truth of the mother’s statement that the father had in fact “screamed” at their son “on multiple occasions”. Ms D did not record that she asked the mother how often the alleged streaming occurred. That probably explains why Ms D did not record the number.
Ms D’s evidence of the subject of the father allegedly screaming at his son on multiple occasions caused me concerned. Ms D’s report and the witness in her viva voce evidence made a great deal about the existence of family violence. Yet in his opening before me Mr Rohan Hoult of counsel, extremely experience in this jurisdiction, said the following –
… When I, at the end of the case, ask your Honour to consider what is in the best interests of X, I will not be raising domestic violence as a factor.
There were other similar references.[3]
T Those other references were found at Transcript P 8 L 15, P 15, P 34 and P 156
Ms D described what she termed the father’s “controlling and emotionally abusive behaviours”. She gave very little in the way of facts that enabled her to label the father’s actions in that way. Ms D also labelled the mother’s description of certain other events as financially controlling. I did not regard Ms D’s label as helpful.
Ms D persisted in her expressions of opinion that was premised on disputed facts. The following is an illustration –
The family violence Mr Walcott exposed his wife to has had a significant negative impact on Ms Walcott. Given Ms Walcott’s prior exposure to trauma in uncontrollable nerve pain and “electric shocks” which arose from complications during a dental procedure), the family violence she was exposed to acted as cumulative trauma.
Her conclusion was not supported by the disputed fact. That tended to render her statements that family violence caused exacerbated depressive symptoms, self-esteem, confidence and self-worth as being unreliable.
The conclusions she drew in sections 6 and 7 of her report went beyond her expertise, except in the most general of ways.
Mr Henwood cross-examined Ms D. The more important matters that arose from the evidence given by Ms D in her answers to questions put in cross examination were as follows –
a)in her masters degree, she undertook an area of domestic violence training;
b)this was the first time she had given evidence in any court;
c)Ms D had not observed the child so she agreed she was not in a position to say whether the child had been affected by family violence and Ms D relied on the information given to her by the mother;
d)the mother reported to Ms D that the mother called certain conduct “abusive behaviours”;
e)Ms D said she diagnosed the mother with PTSD;
f)Ms D said she saw the mother for 17 sessions;
g)Ms D said the mother was capable of working if the mother said she was able to do so;
h)Ms D was unable to find in her own notes any reference to the mother saying that the father was violent;
i)Ms D said she proceeded on the basis that she accepted the truth of the information the mother gave to Ms D;
j)Ms D admitted she did not know the mother’s financial situation;
k)she admitted she was trying her best to have her client succeeded in this relocation application;
l)she admitted she had not recorded that the mother’s tooth pain had completely gone; and
m)when Ms D was expressing views about the adequacy in Melbourne of family support, she was thinking of the adequacy of that support for the mother.
Then followed an interjection by me because the nature of the question seemed to go beyond the witness’s stated expertise. The following exchange unfolded –
HIS HONOUR: Mr Henwood, I’m a little confused here. You’re asking matters of a nature that doesn’t seem to be within the realm of this witness’s expertise. That’s a type of questioning that might be directed to a family consultant. Are we dealing with psychological issues in this witness’s evidence? And if so, is not her evidence to be confined to whether the factors that you mentioned, namely, financial support and social support; will that have a bearing in reducing the stress and anxiety about which this witness gives evidence in her report. That would seem to be much more consonant with what Dasreef & Hawchar in the High Court says is within the scope of this witness’s expertise, otherwise it’s guesswork and of very little utility to me.
MR HENWOOD: Thank you, sir. The point I will make and I will move on.
HIS HONOUR: Well, pursue it with the witness though, not – it’s probably a debate that will happen between you and I at a later stage but we won’t have the benefit of Ms D’s contribution to the case after she leaves the witness box.
MR HENWOOD: Okay. Well, it’s – I will direct this question to the witness.
You haven’t got the expertise to give an opinion about relocation not – would be in the best interests of X; it’s not in your tools of expertise, is it?
WITNESS: I’m not a relocation specialist, I must say.
MR HENWOOD: Thank you, sir.
Ms D was not a relocation expert, on her own admission. I found her evidence to be of dubious value generally. I say that for several reasons, namely –
a)contrary to the statements in Makita v Sprowles and Dasreef v Hawchar, Ms D did not give any relevant information about her specialist training and higher learning to enable her to express opinions that bore upon relocation;
b)on her own admission, Ms D was not a relocation expert;
c)much of Ms D’s report was based on her unqualified acceptance of information imparted to Ms D by the mother;
d)Ms D did not subject information given by the mother to any critical analysis for accuracy or veracity;
e)Ms D herself labelled information given to her by the mother as being controlling or abusive; and
f)Ms D admitted she wanted to assist in securing for her client a relocation order.
On that last point, I took the view that Ms D was an advocate rather than an expert witness.
I place little to no weight on the evidence of Ms D. Her conclusion that the mother suffered from post-traumatic stress disorder from a botched dental procedure was unsupported by the evidence. I reject it. To the extent that Ms D’s testing for the existence of psychologically recognised symptoms of stress, anxiety and depression, I accept that the mother may have those emotional symptoms but I do not accept that the mother’s suffering from those symptoms is causally connected to the fact that she remains in Melbourne. Nor do I accept that it is legitimate for me to accept as a valid basis for the grant of this relocation application that the mother will continue to suffer from stress, anxiety or even depression unless the order is made. In any event, the focus of a relocation application is the best interests of the child, not the mother nor her desire to be nearer family and friends in her place of birth.
The maternal grandmother gave evidence in an affidavit sworn 9 December 2019 and during her cross examination. In her affidavit the mother’s mother deposed to the following –
a)her house in New Zealand is large enough to accommodate the mother and child if relocation is ordered;
b)the maternal grandparents have other grandchildren in New Zealand;
c)she is willing to assist with travel arrangements;
d)she has a close bond with the child; and
e)she is unable to continue spending so much time in Melbourne because she has other grandchildren and commitments to address.
In cross examination she said she could not sustain the number of days (252) in Melbourne.
The maternal grandfather also gave evidence. He was not cross examined. He deposed to a collection of emails passing between the father and the maternal grandfather in relation to proposals for the child, the mother and father to relocate to New Zealand. I accept that those emails were exchanged. However, for reasons already mentioned, the determination of this relocation application is made upon, principally, the best interests of the child. Even if an agreement had been reached about relocation, it will not be given effect unless the parties can demonstrate that relocation is in the best interests of the child. That may explain why Mr Henwood elected not to cross examine the maternal grandfather.
The father’s case
The important matter that arose from the father’s affidavit sworn 20 December 2019 have been extracted in the specific context of the father’s reaction to the mother’s relocation application. The father deposed to the following matters –
a)he strongly opposed the child’s relocation to New Zealand;
b)at the father’s new home the child has his own room;
c)the mother, contrary to her assertions in her affidavit, has “an extremely strong support network in Melbourne” (his words);
d)in his view, if the mother decided to re-enter the workforce a greater number of jobs presented themselves in Melbourne than in New Zealand;
e)the father believes it is in their child’s best interests for the current arrangement to remain;
f)conversely, if the child is permitted to relocate the child will be adversely affected because it would affect their relationship between the child and his father; and
g)the child will not have a meaningful relationship with the father if relocation is permitted.
Mr Hoult cross-examined the father. The more important matters that emerged from the father’s evidence given in answer to questions put in cross examination were as follows –
a)he agreed the mother was and always has been the child’s primary care giver;
b)he has a good relationship with his son;
c)he understood the mother’s wishes to be back in New Zealand with her parents but the father said that those wishes did not appear to be at all in the child’s best interests;
d)he disagreed that there were a lot of advantages in the mother personally being able to live in New Zealand;
e)he said the mother took the view that moving back to New Zealand would orchestrate some magic and that her mental health would improve which in the father’s view were unlikely to actually transpire;
f)the IVO obtained by the mother expires in February next year;
g)the mother had changed her mind about wanting the father’s mother to be involved;
h)the mother made decisions about childcare independently and the mother did not involve the father about key decisions of the child’s life;
i)the father said the mother’s happiness was marginal if she moved to New Zealand;
j)he denied being arrested or handcuffed;
k)the child witnessed some of the police involvement; and
l)he said that he had previously expressed the possibility of moving to New Zealand and working there remotely.
So far as the father’s proposal in relation to the relocation was concerned, he said first he had no proposal. He altered that in re-examination. In re-examination he said the following –
MR HENWOOD: So I will just ask you, what’s the alternative if he was relocated to New Zealand?
MR WALCOTT: So I said that – to delay the relocation until the age of seven when you could establish a school routine. I would be able to see him through those formative years at school and then by that age, he would be able to fly as an unaccompanied minor back to Australia. It would mean that he would be able to spend, like, a substantial holiday period in Melbourne, which is a much more practical solution from my perspective, rather than being holed up in a hotel room in S City, visiting him over there.
Returning to the father’s answers in cross examination, he was asked about his view of a meaningful relationship with his son. The exchange was as follows –
MR HOULT: It may not be practical. Right. You have a meaningful relationship with X. You’ve said that. Correct?
MR WALCOTT: I do now.
MR HOULT: Yes?
MR WALCOTT: Yes.
MR HOULT: Of course you do. He knows exactly who you are. You’re going to continue to see X at some level, whether it be monthly or fortnightly or every second month. Do you follow?
MR WALCOTT: I want to play a significant role in X’s life. I’m a loving father. I’m a good role model. I want to see him on a consistent basis. I want to be able to pick him up from school. I want to go to school interviews. I want to take him to sport. It would be impossible for me to be involved in all those little things that make being a father the most important thing you do in your life. It’s impossible to do that.
Mr Hoult’s question highlighted the issue that was created by a relocation order being made. It was this –
MR HOULT: Well, X has to relocate if mum relocates because nobody is saying X should live with anyone other than Mum. Do you follow? I mean, there’s no other alternative in the case. Do you get that?
MR WALCOTT: Yes.
In summary, two proposals emerged. On the mother’s proposal, the father would spend eight weeks a year with his son, in New Zealand, travel being at the father’s cost. Given that the father had four weeks of annual leave available to him, that would have the other four weeks in a state of uncertainty. Conversely, the father’s primary position was to oppose the relocation order. But if one was to be made then it should be deferred until the child is seven years of age.
I am not prepared to defer any decision on point. The application must be decided against factors that are presently known as at the date of this application.
The family consultant’s evidence
Mr K prepared a family report dated 18 October 2019. In preparing that report, Mr K interviewed both parents and observed the child with both parents. Mr K recited a collection of background pieces of information that are not presently important to recite so I shall not go into that part of Mr K’s report. Relevantly to the child, Mr K said the following –
a)the child is a happy, outgoing, confident and an attuned boy which is a credit to both of his parents and to the other adults in his life;
b)the child and his mother have an easy relaxed spontaneous and physical relationship;
c)the child interacted with the father in a warm, physical, familiar and affectionate manner;
d)both parents are loving and caring parents;
e)Mr K agreed with the views of a previous family consultant who had expressed an opinion in relation to a proposal for the father to have contact with the child once every six weeks, effectively two days and one night only, concluding that such an arrangement would render the father “almost as a stranger”;
f)if the mother relocates there is some likelihood that the child’s relationship will be at risk and be possibly undermined;
g)even though the child has a relationship with the father, that relationship has developed in a conflicted post separation context since 2018 when the parents separated;
h)the arrangements presently in place for the child to spend time with the father have enabled the child to develop a further bond with the father and the child is use to the present arrangement; and
i)the father has striven to have and to maintain a relationship with the child and generally, the mother has made the child available for that purpose.
Mr K cautioned against any impairments to the current arrangements. He said the following –
…Having said this, the relationship is as yet a developing one and hence more vulnerable. Consequently, if the child relocates in the immediate future, unless the relationship he has with Mr Walcott is reinforced by his maintaining a consistent and regular presence in his life, his relationship with Mr Walcott will be at risk. A limited period of contact once every six weeks, as was initially proposed by Ms Walcott, would not have been conducive to supporting and preserving their relationship.
Mr K gave his opinion about the likely effects of the mother’s proposal for the father to have eight weeks with the child. Mr K said the following –
Unless Ms Walcott’s proposal can be implemented in its entirety (that is 12 time blocks), such an arrangement (entailing possibly eight blocks only) would be inadequate as a way of supporting and maintaining the X/Mr Walcott relationship. Contact will occur infrequently (possibly every six if not more weeks) and for varying periods (ranging from 3 to possibly six nights). The presence of sufficient goodwill, trust, sound communication, thorough planning needed to implement such an arrangement successfully is also questionable. These elements have not been readily evident in this relationship. Furthermore, it is a complex arrangement which requires many elements to be coordinated cooperatively if it is to work.
Mr K suggested a delay in the relocation order until the child’s bond with the father is strengthened and consolidated until the child is five years of age.
Mr K addressed the possibility that the father’s contact with the child is interrupted for some reason. That seemed to me to be a very sensible consideration by Mr K. He said the following –
…If orders are made for Ms Walcott to relocate in the immediate future but Mr Walcott’s contact with the child falls far short of what is being proposed, there is a likelihood that the Mr Walcott/X relationship will be eroded, if not eventually extinguished, as the sheer difficulty of maintaining long-distance relationships asserts itself.
In the end it seemed to boil down to Mr K saying this was all a matter for the court.
That much was true. But it always was.
It seemed to me that the mother was free to relocate to wherever she wanted. That much was consistent with AMS & AIF[4] and U v U.[5] However, as she was the primary carer, the child will travel to wherever she goes. Any such international relocation will impact upon the child’s time with his father. The mother has proposed that the father has eight weeks a year with the child. In any view (although this is largely irrelevant) those reasons are not well grounded. The real issue is that the mother’s proposal gives the child in sufficient time with his father so as to develop the critical bond that is currently developing between the child and his father. The father’s proposal is for the current regime to continue. Consensus generally abounded that such a regime worked well at present. Further, it is relevant to point out that despite the mother’s expectation and assurance to me that she will in fact facilitate her proposal for the father’s time with the child, a large number of years will unfold before the child turns 18 and it is likely – possibly even highly likely – that complications will emerge in the arrangement the mother proposes. In addition, the implementation of it is likely to be seriously expensive.
[4] (1999) 199 CLR 160
[5] (2002) 211 CLR 238
It is now necessary to turn to legal issues.
Relocation – certain legal matters
Since the decision of the Full Court in Taylor v Barker,[6] the approach to relocation applications has involved –
a)considerations of the best interests of the child under s 60CC(3) of the Family Law Act; as well as
b)considerations of the time the child will spend with each parent under s 65DAA of the Family Law Act.
[6] (2007) 37 Fam LR 461
That is not to say that prior to the 2006 Family Law Amendment (Shared Parental Responsibility) Act the notion of relocation was absent from the Family Law Act. It was embedded in differently numbered sections of the Act then in operation. Those provisions were considered by the High Court in AMS & AIF.[7] In that case, Kirby J set out nine propositions that represented general principles relevant to a relocation case. It is useful to set them out in précis form –
[7] (1999) 199 CLR 160
a)first, each case depends on the application of the governing legislation which is in a constant state of amendment and re-expression;
b)second, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of the parent with whom the child resides;
c)third, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court making the decision to ignore the legitimate interests and desires of the parents and if there is conflict between those considerations, priority must be accorded to the child’s welfare and rights;
d)fourth, having regard to a court’s reluctance to interfere in the freedom of a parent with whom a child lives, the applicable legislation is enacted and relevant discretions are exercised for a society that attaches high importance to freedom of movement and the rights of adults to decide where they will live;
e)fifth, while legislative reform (sometimes reflective of international law) has laid increased emphasis on the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one;
f)six, a more relaxed attitude should be adopted to relocation within Australia than relocation overseas;
g)seven, where a parent seeks to change arrangements affecting the residence of or contact with the child, the parent must demonstrate that the new arrangement is for the welfare of or in the best interests of the child;
h)eight, departure from the norm of shared parental responsibility is within the court’s discretion; and
i)nine, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety analysis of the primary judge’s reasons given the large element of judgment, discretion and intuition which is involved.
Those observations were set against a legislative backdrop that preceded the 2006 amendments to the Family Law Act yet they have ongoing application to the existing emanation of the Family Law Act and have been applied by Full Courts since 2006.
An early exposition of the operation of the 2006 amendments in the context of a relocation application was the decision of Dessau J in M v S,[8] judgment in which was handed down on 21 December 2006. There, her Honour (as her Excellency then was) traced through the provisions of the Family Law Act in logical sequence. It is utile to paraphrase her Honour’s approach in the following way –
a)in deciding a particular parenting order the best interest of the child is the paramount consideration: s 60CA;
b)a presumption exists that it is in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA;
c)as the concept of equal shared parental responsibility does not relate to the time the child spends with each parent, the court is required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA(1)(a)) and whether it is reasonably practicable (s 65DAA(1)) and then to consider an order for equal time (s 65DAA(1)(c));
d)if the court does not make an order for equal time the court must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA(2)(c)) and whether it is reasonably practicable (s 65DAA(2)(d)) and then to consider an order for substantial and significant time (s 65DAA(2)(e)).
e)the concept of “substantial an significant time” is defined in s 65DAA(3);
f)when considering propositions of “reasonable practicability”, s 65DAA(5) sets out the matters the court must consider.
[8] (2006) 37 Fam LR 32
Thus far, none of her Honour’s comments touched on the criteria to be established when considering an application for relocation. However, her Honour pointed out that the legislation does not include a provision about relocation and the proposal recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report on the exposure draft of the 2005 bill was not adopted. In M v S her Honour (at paragraph [38]) said the following about whether an applicant for a relocation order bore any onus of proof –
Counsel for the father submitted that the new Pt VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
Ultimately her Honour made a relocation order in that case.
The decision in Morgan v Miles[9] is frequently cited as the locus classicus on the criteria to be established in an application for a relocation order. It must be acknowledged that the decision of Boland J in that case has been widely accepted, not the least reason for its consideration of the appropriateness of orders in the nature of relocation orders made at an interim stage. Boland J held that earlier core principles, that is to say, core principles that predated the operation of the 2006 amendments remain valid, those being –
a)that the child’s best interests remain the paramount but not sole consideration;
b)that a parent wishing to move does not need to demonstrate “compelling” reasons;
c)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
d)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
[9] (2007) 38 Fam LR 275
Boland J further held that the 2006 amendments required a consideration of the criteria in s 60CC as informed by s 60B plus the consequences of an order being made for sole parental responsibility. On the facts of that case Boland J held that distance per se was not the determinative criteria. Her Honour held that the relevant issue was the consequence of relocation. Hence, the legislation contains no definition of local, intrastate, interstate or international relocation.
More recently, the Full Court has embraced the notion that relocation is not to be dealt with as a discrete issue but rather as just one of the matters that are under consideration for the child’s future living arrangements. That was the upshot of decisions that preceded the 2006 amendments in U v U[10] and Bolitho v Cohen.[11] In the 2007 decision of the Full Court in Taylor v Barker such an approach was restated. The Full Court decided Sampson v Hartnett[12] a month and three days after Taylor v Barker was decided yet in Sampson, Taylor was not mentioned at all. That may be accounted for on the basis that in Sampson the trial judge made orders requiring the mother to relocate with her child from Melbourne to Sydney and the Full Court was required to pass upon on the jurisprudential basis (especially the power) for the making of that order. While not relevant to the determination of this case, former Family Court Justice Richard Chisholm wrote about the subject in his article To What Extent Can The Court Make Orders That Inhibit a Parent’s Right to Relocate? Sampson v Hartnett (No 10).[13]
[10] (2002) 211 CLR 238
[11] (2005) 33 Fam LR 471
[12] (2007) 38 Fam LR 315
[13] (2008) Australian Family Law Bulletin 934
Given that a court must engage in a consideration of s 65DAA(1), the observations of the High Court in MRR v GR[14] about the imperative nature of its terms must be addressed. The relevant passage is as follows –
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.
[14] (2010) 240 CLR 461
Elsewhere, the plurality held as follows –
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The High Court held that the Full Court erred by upholding the decision of a magistrate and by dismissing the appeal from the magistrate. At paragraph [19] of its reasons the plurality held as follows –
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
As has been recorded above, in Sigley v Evor[15] the Full Court approached the determination of an intrastate relocation application by reference to considerations of whether the children would have a meaningful relationship within the contemplation of s 60B(1)(a) if the relocation was permitted. The Full Court then applied the primary and additional considerations in s 60CC(2)(a) and s 60CC(3) respectively.
[15] (2011) 44 Fam LR 439
The best interests of the child is the paramount consideration in this case not the mother’s wishes.
Section 60CA imposes a mandatory stipulation that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. A different section of the Act makes provisions for ascertaining the best interests of the child. Those are set out in s 60CC. That section is divided into what are called the “primary considerations” in subsection (2) and the “additional considerations” set out in subsection (3). So far as the primary considerations are concerned, the court must address –
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.
Of the two primary considerations, s 60CC(2A) instructs a court to give greater weight to the considerations in s 60CC(2)(b), namely the need to protect the child from physical or psychological harm.
The concept of “meaningful” for the purposes of Part VII of the Family Law Act is not defined in the legislation. In s 60B(1)(a) the phrase “meaningful involvement” appears and in s 60CC(2)(a) the phrase “meaningful relationship” appears. The absence of any statutory definition of “meaningful” when used in either phrase was pointed out by the Full Court in McCall v Clark.[16] Yet two years earlier a single judge of this court observed that “meaningful” is synonymous with “significant” which in turn is synonymous with “important” or “of consequence”. That emanated from the decision of Brown J in Mazorski v Albright.[17] Further, it was held by Bennett J in G & C[18] that a “meaningful relationship” required the court to make its assessment on a prospective basis. The prospective approach was embraced by the Full Court in Sigley v Evor. On 21 November 2019 the Full Court in Rochford & Fitzhugh[19] reviewed the cases on point.
[16] (2009) 41 Fam LR 483
[17] (2007) 37 Fam LR 518
[18] [2006] FamCA 994
[19] [2019] FamCAFC 218
In this case I have proceeded on the basis that I am required to examine the evidence as it was adduced at trial in order to ensure that on a prospective basis, that is to say, into the future, the orders to be made –
c)ensure the objects of Part VII of the Act are met;
d)the children have the benefit of both of their parents having a meaningful involvement in the children’s lives as set out in s 60B(1)(a);
e)the children have the benefit of a meaningful relationship with both of the children’s parents as set out in s 60CC(2)(a); and
f)meaningful means any of “significant”, “important” or “of consequence”.
Under the regime proposed by the mother, the child will move with the mother to New Zealand. By reason of that phenomenon alone, the mother will have a meaningful relationship with the child. But by definition, the father’s time with the child will be less than he presently enjoys, a matter about which he complained because his starting position was that the child should remain living in Melbourne. In Godfrey & Sanders[20] Kay J held that even where a move of the child results in a diminution in quality of the relationship between a parent and a child, the legislation aspires to the promotion of a meaningful relationship, not an optimal relationship. The obligation that falls to this court, as was pointed out in Champness & Hanson,[21] is the making of orders that most likely promote the best interests of the child. The court there held that in seeking to attain that objective, the court is directed by s 60CC(2)(a) to consider the benefit to the child of having a meaningful relationship with both parents. And even if such a benefit is demonstrated, that benefit must be weighed against all other relevant factors. That seems to me to be a different way of saying that the “meaningful relationship” consideration described as a primary consideration in s 60CC(2)(a) is the first of many considerations a court must address but by no means does it predominate and dispositively determine the matters to be considered and weighed when determining the best interests of the child when making a parenting order. All matters in s 60CC must be considered, weighed and assessed, as the Full Court stated in Collu & Rinaldo.[22]
[20] [2007] FamCA 102
[21] [2009] FamCAFC 96
[22] [2010] FamCAFC 53
International relocation
Reported cases where an order for international relocation has been sought are plentiful. They include Amador & Amador,[23] Cape v Cape,[24] Banks & Banks,[25] Kuan & Toh,[26] Zahawi & Rayne,[27] Hutcheson & Meli,[28] Molloy & Reid[29] and Kerson & Blake.[30] A recent consideration of the point was made by the Full Court in Franklyn & Franklyn.[31] None of those decisions alter my analysis of the relevant considerations that a court must address when considering an international relocation.
[23] (2009) 43 Fam LR 268
[24] (2013) 50 Fam LR 1
[25] [2015] FamCAFC 36
[26] [2016] FamCAFC 115
[27] [2016] FamCAFC 90
[28] [2016] FamCAFC 258
[29] [2018] FamCAFC 89
[30] [2018] FamCAFC 215
[31] [2019] FamCAFC 256
Subsection (3) of s 60CC sets out an array of separate considerations that a court is required to address when making a determination about what is in the best interests of the children.
This being an application for a parenting order, the several issues raised s 60CC(3) became engaged. While certain subsections appear to contain overlapping issues, it remains true that no particular subsection predominates over another yet the judge considering a relocation application must consider each. To them I now turn.
Section 60CC(3)(a) requires a consideration of any views expressed by the child. In this case the child is too young to express views.
Section 60CC(3)(b) requires a consideration of the nature of each parent’s relationship with each child and other persons including grandparents. The child in this case has the good fortune to be surrounded by family members on both sides who love, protect and support him, especially his mother and father. In turn the evidence revealed that the child responds favourably by getting on well with both parents and both sets of grandparents.
Section 60CC(3)(c) requires a consideration of the extent to which each parent has taken or failed to take the opportunity to participate in major long-term decision-making concerning the child, to spend time with the child and to communicate with the child. In this case it could not be said that either parent is not devoted to his and her son. Each is involved in long-term decision-making, spending time with the child and communicating with the child.
Section 60CC(3)(ca) requires a consideration of 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 parents or any other child or person with whom the child is or has been living. This section is relevant to the impact of the relocation (if ordered) upon the child’s relationship with the father. In my view, that is among the most important issues in this case. Weighing very heavily on me is Mr K’s comment that the child won’t be able to hug computer, in reference to the suggestion that the child can communicate by Skype if relocation is ordered. I agree. I take the view that the child’s relationship with the father will be seriously impaired in a way it need not be if the mother’s relocation application is ordered.
Section 60CC(3)(e) requires a consideration of the practical difficulty and expense of the 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. In this case, the mother’s proposed relocation, if ordered, will cause the father practical difficulty and expense in spending time and communicating with his child. In my view that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents, particularly the father, on a regular basis.
Section 60CC(3)(f) requires a consideration of the capacity of each of the child’s parents and any other person including grandparents to provide for the needs of the child including the emotional and intellectual needs. One of the greatest importance in this case is the capacity of each of the child’s parents to provide for the emotional and intellectual needs of the child. Both provide for the needs of the child. If the proposed relocation is allowed, the capacity of the father to provide for those emotional and intellectual needs of the child is significantly diminished, if not substantially impaired. That should not be allowed to occur.
Section 60CC(3)(g) requires a consideration of the maturity, sex, lifestyle and background of the child and of either of the child’s parents. Here, the fact that the mother is a New Zealand citizen and wants to return to New Zealand is relevant. It is also relevant that the child is partly of New Zealand heritage. I have taken that into account in my decision in this case.
Section 60CC(3)(h) relates to Aboriginal or Torres Strait Islander children so it is not relevant to this case.
Section 60CC(3)(i) requires a consideration of each parent’s attitude to the responsibility of parenthood, as demonstrated by them. Nothing in the evidence of Mr K caused particular focus in relation to this subsection. Both parents are good parents, according to Mr K. I agree.
Section 60CC(3)(j) and (l) require a consideration of matters pertaining to family violence. On behalf of the mother, Mr Hoult of counsel told me that he would make no issue of family violence in this case. I have taken into account that an IVO is presently extant, expiring next February.
Section 60CC(3)(l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. In this case final property orders were agreed. The determination of this relocation application will not resolve all ongoing parenting issues.
Drawing the threads together
It is indisputable that the mother is devoted to her child and has been a caring primary caregiver since the son’s birth. It is also indisputable that the father is devoted to his child and has forged a strong bond with his child, which bond the child is reciprocating. The bond between the father and child is at a developmental phase. The child is very young. He is in a position now, in Australia, where he sees both his parents satisfactorily and with a high degree of regularity. It seems at least on the evidence of Mr K that the diligence of both parents in their attitude to parenting accounts in part for the child being as happy and settled as he is. Both parents have been involved in that process. Each has behaved towards their child in an exemplary way. That must continue unabated in order for the child to continue forming the bonds he currently is forming with both parents. An interruption in the development of those bonds puts the child’s overall development in these critical years in grave jeopardy.
So under what circumstances would it be appropriate to consider jeopardising the development of those bonds?
The mother cites her mental health being at risk. She also cites how life in New Zealand with its proximity to her family and job opportunities will make her life less traumatic and hence that will make the child’s life better.
I reject both.
I was not persuaded that the evidence in this case supported a diagnostic conclusion, based on sound psychological evidence, that the mother’s mental fabric was as fragile as she said. I am unwilling to place reliance on the evidence of Ms D, except insofar as she said that testing revealed that the mother was anxious, depressed and stressed. To a greater or lesser degree, at one time or another most persons feel a degree of anxiety, depression or stress. Ms D was not qualified to express views about stress, depression or anxiety arising from relocation. She said she was not a relocation expert. But aside from being a relocation expert, Ms D admitted to wanting to win for her client. That is not the role of an expert. Conversely Mr K presented as an expert who offered reasoned and sensible, detached dispassionate and objectively maintainable views. He was against relocation at this time, even factoring into matters that he considered the mother’s mental health and her stated opportunities in New Zealand. There is no certainty that the mother will secure the job she believes she will get in New Zealand. There is no certainty that her mental health will change with a change of venue. Yes, she will move away from the father. But in doing so, there is no certainty that life for the child will be better. Conversely, if a relocation order is made, the evidence demonstrates that the father’s bond will be adversely affected at a critical developmental stage of the child’s life. That will damage the child’s development.
I will not authorise that.
At the time of delivering my judgment the virus known as COVID-19 has had a global impact. Further submissions on the issue of the impact on the parties of the COVID-19 pandemic were put forward by both the mother and the father.
In his submissions the father raised that in the current global climate as a result of Australian Government enforcing a travel ban, prohibiting him from departing Australia to travel overseas, as well as the New Zealand Government banning all foreign travellers entering New Zealand, it would be impossible for the child to see the father during the COVID-19 pandemic.
Relevantly paraphrased the mother submitted the following four points for my consideration –
a)at the moment and for the foreseeable future she does not have the assistance of her mother, thereby adding to her sense of isolation;
b)she can only access $109.00 per week through government benefits and her employment prospects are more limited now than before
c)the mothers aunt and uncle, with whom she was previously living, have moved back to Suburb Y; and
d)if she and child are permitted to relocate to New Zealand then both are able to quarantine at the maternal grandparent’s residence.
Irrespective of the parties’ further submissions, for the reasons already stated above I refuse the mother’s relocation application. There remains the ongoing conduct of overall parenting issues in this case. I direct the parties bring in minutes within 14 days with their proposals for ongoing parenting orders.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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