Waltos and Sawtell
[2020] FCCA 1846
•9 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALTOS & SAWTELL | [2020] FCCA 1846 |
| Catchwords: FAMILY LAW – Parenting – 9 year old child – relocation – best interests – reasonable practicability – orders made. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: MRR & GR (2010) FLC 93-424 Zahawi & Rayne [2016] FamCAFC 90 Goode & Goode (2006) FLC 93-286 Adamson & Adamson (2014) FLC 93-622 U & U [2002] HCA 36 Mazorski & Albright (2007) 37 Fam LR 518 Godfrey & Saunders [2007] FamCA 102 |
| Applicant: | MR WALTOS |
| Respondent: | MS SAWTELL |
| File Number: | NCC 938 of 2018 |
| Judgment of: | Judge Betts |
| Hearing dates: | 4 and 5 November 2019; 6 April 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 9 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mooney |
| Solicitors for the Applicant: | Jennifer Blundell & Associates |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Self-represented |
ORDERS
That the parents have equal shared parental responsibility for the major long-term issues of the child, X, born in 2010 (“X”).
That X live with the Mother.
That the Mother be at liberty to relocate with X to the City B region.
That the Father spend time with X as agreed in writing between the parents and failing agreement as follows:
(a)during school terms, each fortnight from conclusion of school Friday until commencement of school the following Tuesday;
(b)during the end of Terms 1, 2 & 3 school holidays from 10am on the first Saturday after school finishes until 4pm the following Saturday;
(c)during the end of Term 4 school holidays:
(i)in even-numbered years from 10am on the first Saturday until 4pm on 2 January of the following year;
(ii)in odd-numbered years from 10am on 2 January of the following year until 4pm on the last Saturday before school recommences.
Unless otherwise agreed in writing, handovers that do not occur at X’s school are to occur at McDonalds City B.
Each parent will facilitate X communicating with the other parent by telephone (or by Facetime, Skype or other electronic means if agreed) at 7pm each Wednesday and Saturday when X is in that parent’s care or at other times as agreed in writing. For the purposes of this order, the parent who has X in his/her care will initiate the communication and will ensure that, so far as possible, X is given a private and quiet environment in which to communicate.
Each parent will facilitate X contacting the other parent on the other parent’s birthday, on Christmas Day, on Easter Sunday or at any other reasonable time that X expresses a wish to do so.
Notwithstanding order (4)(a) herein:
(a)In term 2, the Father’s alternate weekends will commence on the Friday that avoids the Mother’s Day weekend;
(b)In term 3, the Father’s weekend time with X will commence on the Friday that results in the Father spending the Father’s Day weekend with X.
These orders authorise X’s school/s to provide to each parent (at that parent’s expense) copies of all school reports, correspondence, photograph order forms, invitations and any and all other documents normally provided by the school to parents.
These orders authorise X’s treating medical and allied health practitioners to provide to each parent (at that parent’s expense) any medical information held by them concerning X.
Each parent shall notify the other parent immediately in the event of X being hospitalised, or suffering any serious illness or medical emergency.
The Mother is to ensure that X’s school/s and General Practitioner/s are provided with a copy of this order.
The Mother is to ensure that X’s school/s and any treating medical practitioner are provided with the Father’s contact details and that he is listed as an emergency contact.
Each parent is to keep the other informed of their current physical, postal and email address, and their current mobile telephone number, and each is to advise the other of any change within three (3) days of such change.
Pursuant to s 68B of the Family Law Act, each parent is restrained from denigrating the other parent to X, or in X’s presence or hearing.
If either parent intends to travel interstate with X during that parent’s time with him, then that parent is to notify the other parent in writing at least fourteen (14) days in advance.
For the purposes of these orders, “writing” includes text messages and emails.
IT IS NOTED that publication of this judgment under the pseudonym is Waltos & Sawtell approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 938 of 2018
| MR WALTOS |
Applicant
And
| MS SAWTELL |
Respondent
REASONS FOR JUDGMENT
Overview:
These proceedings relate to the future parenting of X born in 2010, who is presently nine (9) years and ten (10) months of age.
X’s parents both live in the Region C, where X is thriving. His Mother, Ms Sawtell, who has always been his primary carer now wishes to move with X to City B in New South Wales, some 4 – 4 ½ hours’ drive away. She believes the move will enable her to live a happier and more productive life, which she contends will be in X’s best interests.
X’s Father, Mr Waltos, disagrees with the move. He presently spends regular time with X and has immersed himself in X’s school and sporting activities. He is a very involved Father and he wishes to continue that level of involvement which he says will inevitably diminish if X moves to City B.
The Mother is 50 years old and works as a health care worker. Her financial circumstances are reasonably modest. She has two (2) other children:
a)her daughter D, turning 17 this year, who shares the household with the Mother and X; and
b)her adult daughter, Ms E, now living in City B.
The Father is 59 years of age and retired. He is in a reasonably strong financial position. He has one (1) adult child, Ms F, who lives in the Region C with her children.
These parents had a workable co-parenting relationship up to the point where the Mother raised the relocation issue and the Father refused to consent. He felt his parenting role was being minimized and under-valued. She felt her freedom of movement was being controlled. This impasse markedly soured things; the co-parenting relationship has become quite toxic.
It falls on me to now resolve X’s future parenting arrangements. I do so in circumstances where each parent has legitimate and entirely understandable reasons for the relief they seek.
Evidence and documents before the court:
The trial proceeded over three (3) days. The Mother was self-represented throughout and the Father was represented by solicitor and counsel.
The Father relied upon:
a)his Initiating Application filed 26 March 2018;
b)his trial affidavit filed 3 October 2019;
c)his supplementary affidavit filed 11 March 2020.
The Mother relied upon;
a)her trial affidavit filed 2 October 2019;
b)her supplementary affidavit filed 9 March 2020.
Each party had filed a Case Outline which was marked as an exhibit for convenience. The parties also tendered various documentary exhibits.
The court had the benefit of a Family Report from Dr G, Clinical Psychologist, dated 1 November 2018, which was marked as exhibit “C-1”.
The court had the advantage of seeing and hearing each of the parents give evidence.
The Father consistently came across as an articulate and thoughtful witness, very much devoted to his son. The same can be said for the Mother. She represented herself quite effectively in the course of the hearing, demonstrating a sound understanding of the interim orders and of her parenting obligations.
I have had regard to all of the documents, evidence and submissions. Insofar as the Father objected to various paragraphs of the Mother’s affidavit material, these reasons will address the evidence that I have found to be relevant and of assistance. I do not propose as part of my reasons to rule on each individual objection.
Dr G gave considered and thoughtful evidence. Her Family Report had recommended against relocation, but in the course of her oral evidence it was clear that this was only a tentative view. I respectfully agree with her observation that it is a “big decision to make” and a very hard case.
Chronology:
The parents formed a relationship at a mature age.
X was an unplanned pregnancy and his entry into the world radically changed each parent’s life plans. The Mother had planned to leave the Town H area around 2011 and buy a cheaper property in New South Wales somewhere. However, after becoming pregnant with X she decided to stay in Town H for a few years so that the Father and X could better develop their relationship before she moved. The Father assisted her to find her current home which she purchased just before X’s birth. [1]
[1] Paragraphs 148 - 150 of Mother’s affidavit filed 2/10/19
The relationship between the parents quickly became untenable after X was born. The Father complained that the Mother was frequently very moody, to the extent that he feared she might be suffering post-natal depression. The Mother did not think that he was being sufficiently supportive.
The relationship ended but the parents remained on reasonably amicable terms; the Mother facilitated the Father/Son relationship without the intervention of counsellors, solicitors or a court. The Father’s time was initially very limited but over time it became more constant and regular.
Both parents have quite strong personalities. The Father – at least back then – was anxious not to upset the Mother, lest she limit his time with X. Thus as a general statement he placated her and avoided getting into arguments. He was somewhat resentful of her attitude and at times felt bullied.
On some occasions the Mother did plan her own activities with X during what should have been the Father’s time; or she otherwise changed what should have been the Father’s time. The Mother’s actions were motivated, at least in part, by her own sense of resentment. She had found herself in her early 40s raising a young baby and increasingly feeling “trapped” in a place she never intended to stay.
Around 2015 the Father spoke to the Mother about commencing proceedings; he wanted a more predictable co-parenting arrangement in which he played a more significant role. The parents agreed for the Father to spend more consistent and regular time with X.
Some simmering resentment remained. In December 2015/January 2016 the parents exchanged reactive text messages in which the Mother complained about how it would have been “nice” if the Father had helped out when X was a baby and the Mother was getting 4 hours sleep a night. He pointed to his significant child support payments and criticised her for making a “big drama” about him wanting one extra night with X.[2]
[2] Exhibit “F-4”
By 2016 the Mother was raising the possibility of moving west as she had originally planned. She texted the Father to say that she was thinking about moving and how “I was starting back to work when I met you. Now I have been raising your kid for five and a half years with bugger all help from you and I am in the worst position I have ever been in my life…I don’t want to talk anymore when I start thinking what you did and how you did it and your explanation I get very unhappy. It’s unfair men can use women like that…People just keep taking my life away and then leaving me with the mess and hard work. I’ve about had enough. I need to do something for me and look after myself. Being a single parent is the hardest and most thankless job”.[3]
[3] Text messages taken from annexure “B” to Father’s affidavit filed 3/10/19
The parents had different parenting styles which became increasingly apparent as X got older. The Mother’s attitude was that X had to “toughen up”; she was not going to be a “helicopter parent”. The Father was much more “hands on”; he thought her approach to be somewhat cold. Their different attitudes were a source of tension.
The Mother raises the spectre of relocation:
Around 2017 the Mother’s eldest daughter Ms E relocated to City B after securing a three (3) year teaching contract there. At that time, the Mother was in a relationship with her then-partner Mr J, and they travelled out to City B together to visit her.[4] While they were there, they observed that house prices were cheaper. They discussed the possibility of selling their respective homes and combining their money to purchase a better quality home in City B. They had these discussions on the drive home with X sitting in the back seat.[5]
[4] The Mother and Mr J have since separated
[5] Exhibit “C-1”, paragraph 57
Upon returning home, the Mother soon raised the issue of relocation with the Father.
The parents met and discussed the matter over a coffee but they disagree about what was said. Things became heated. The Father told the Mother she couldn’t just leave town with X. The Mother reacted emotionally, claiming she had never given her “consent” to falling pregnant in the first place. The Father took that statement as a threat; the Mother did not.
The Father also says that the Mother effectively demanded from him that he “throw a couple of hundred thousand dollars at her to stay”. The Mother says that she was merely making the point that she would need that amount of money to be able to buy the same standard of property in Town H as she could in City B.
It is unnecessary for me to make specific findings about what each party said other than to note that each appeared to be honest in their evidence. Their conversation reflected the resentment each was feeling towards the other.
Notably, this was the turning point at which:
(a)the Father took the view that, from his perspective, he was finally going to “start standing up” to the Mother; and
(b)the Mother took the view that, from her perspective, whatever “friendship” had existed between the parents was over.
Shortly afterwards, the parties exchanged passive/aggressive emails in relation to information-sharing for X. The Mother portrayed herself as a victim, claiming the Father had not fully acknowledged her past efforts in making sure that he received information. She now said it was his responsibility to find things out for himself. The Father responded by accusing her of harassing him for child support.[6]
These proceedings commence:
[6] Exhibits “M-2” and “M-3”
The Father commenced these proceedings on 26 March 2018. He sought to prevent the relocation and to spend five (5) nights per fortnight with X.
On 8 May 2018 the parties entered into interim consent orders whereby X would continue to live with the Mother, that she not relocate, and that the Father spend time with X each alternate weekend from Friday to Sunday together with some additional time during school holidays and on special occasions. The orders authorised each parent to obtain information from X’s treating doctors. A Family Report was also ordered.
The conflict deepens:
Notwithstanding the consent order, the parents became more openly conflictual.
In May 2018 X was experiencing recurrent ear infections and the Mother emailed the Father implying that something must have been happening at his place. He disagreed, at the same time asking the Mother to tell him that “I hope he feels better soon”. The Mother responded in an emotionally reactive and over-the-top manner: “Are you kidding me? Is that an order? You rant about me calling X while at your house but you want me to pass messages??”
The parents found themselves in conflict over the Father not being listed as X’s “next of kin” at the local hospital. The Mother had attended there when X had a broken toe, and had never provided the hospital with any of the Father’s contact details. The Father had his solicitor write to them, sending a copy of the interim orders.
In the witness box the Mother explained that she assumed the hospital already knew about the Father given he was named on X’s Birth Certificate. I found that evidence unconvincing and consider she was being somewhat proprietorial.[7]
[7] The Father also complained about not getting school information, but it was unclear as to why this was so.
X was an enthusiastic sports player and in 2018 the Father began coaching his team. Problems soon emerged. The Mother became increasingly resistant to X playing. She cited safety issues relating to the lack of proper medical equipment and also some “rough tactics” being engaged in by the children in what she thought was an overly aggressive competitive environment. X has some joint hyper-mobility and the Mother thought this made him more prone to injury. The Mother tried to discourage the sport and instead promoted other sports.
The Father gives evidence of the Mother angrily storming away with X after training and dumping his clothes on the Father’s bonnet, and generally making it plain to others that she was irritated to be there.
The Mother emailed the Father outlining her concerns about the lack of a designated first aid officer and about how she had never agreed to X’s long-term participation in sports without being sure that it was safe. She made clear that she was very unhappy about him playing.
The Father suggested that any issues be taken up directly with the sports club or the association.
The Mother queried the Father’s coaching skills. In a text of 3 July 2018 she told him she had posted a link to the “correct” warm-ups for children, while observing that he would not have seen it as he had her “blocked” from the group Facebook page. She pointed out that she had completed health qualifications, observing rather defensively that she had done so during a time when he had allegedly been accusing her of “refusing to work/budging” etc.
She invited ongoing discussion about sports but the Father was not entering into it. Neither parent was going to give up on the issue without a fight.
On 21 January 2019, the parents consented to further interim orders providing for equal shared parental responsibility and for the Father to have X for 4 nights per fortnight and half of the short school holidays.
Their co-parenting relationship continued to deteriorate.
Just after school had recommenced, they were exchanging unpleasant texts about X’s school clothes.[8]
[8] Exhibit “H” to Father’s affidavit filed 3/10/19
The next month (March 2019), the Mother made an anonymous complaint to Crime Stoppers about the presence of an old firearm at the Father’s property. According to the Father, Police attended at his home and located “an old air rifle wrapped up in a towel and stored somewhere in the garage. The air rifle was approximately one hundred years old and was held together by wingnuts. I was given his gun by…when I was a child. I kept it as a keep sake”.
The Father voluntarily handed the gun over to Police, but was nonetheless charged with unlawful possession of a firearm. The City K Local Court later dismissed the charge and the Father says that the presiding Magistrate told him that he should make sure that he has no other items on his premises which may prompt a malicious complaint.
The Father regarded this Police complaint as evidence of the Mother’s vindictiveness. Her evidence was that she was fearful about the Father having a firearm on his property. I consider it was a combination of the two.
The parties engaged in some “tit for tat” in relation to X’s schooling. The Mother kept him home on a number of Fridays (when in her care) and the Father kept him home on a number of Mondays (when in his care).
The parties were unable to reach a compromise about the Mother taking X to church on a Sunday.
The Father re-enrolled X in sports over the Mother’s objection.
On one occasion when X returned home with a bump on his head, the Mother asked the Father whether it had happened at sports and she took him to the doctor. The Father annexes her messages to him, which also refer to X having ongoing ear infections, but notably he did not respond.
The Mother asked the Father to stop coming to X’s sports games as she said that he made her uncomfortable by his behaviour and presence. She complains that he used to sit in such a position that he would be facing her and that she found him staring at her on occasion. She also complained about him calling out to X during games, which she found embarrassing and annoying. She texted him on one occasion asking him to stop. He didn’t. Their conflicting parenting styles were on display.
The Mother complained to X’s school about the Father’s ongoing regular involvement there, as the Father had significantly ramped up his involvement and was seeing X there most days. He also asked X to pass on sports-related messages to the Mother, which he must have suspected would irritate her. It did.
Following the trial in November 2019, the Father sought an increase in his time with X over Christmas. The Mother refused, sticking to the terms of the orders. To be fair to her, she had already made plans.
There was further poor communication between the parents concerning X’s attendance or non-attendance at a school swimming carnival in December 2019. It was a comedy of errors, revealing how strained and difficult their communication had become.
The law:
These proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act (“the Act”). There are a number of key objects and principles which underpin the operation of Part VII, and these are set out in section 60B of the Act. I do not propose to restate them here.
When deciding whether or not to make a particular “parenting order”,[9] X’s best interests are to be regarded as the paramount consideration: section 60CA, section 65AA.
[9] Statutorily-defined in s 64B
In arriving at a “best interests determination”, the Act prescribes mandatory considerations in section 60CC. The so-called “primary” considerations are set out in section 60CC(2)(a) and section 60CC(2)(b). The so-called “additional considerations” are set out in section 60CC(3)(a) through to section 60CC(3)(m). The latter is a catch-all, designed to accommodate the facts of each individual case and family that come before the court.
“Parental responsibility” is defined in section 61B as:
all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
By section 65DAC, parents who share parental responsibility for a child are obliged to consult with each other about “major long-term issues” and must make a genuine effort to come to a joint decision.
“Major long-term issues” are defined in section 4 of the Act. Relevantly, they include “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.
Section 61DA of the Act imports a rebuttable statutory presumption that, when making a parenting order for X, it would be in his best interests for the parents to be allocated equal shared parental responsibility.
An order for equal shared parental responsibility engages the statutory pathway set out in section 65DAA of the Act.[10] Put shortly, I must consider, as the first option, making an order for X to spend equal time with both parents if such an order is in his best interests and “reasonably practicable”.
[10] Goode & Goode (2006) FLC 93-286
If equal time is not in X’s best interests or is not reasonably practicable, then I must consider making an order that X live primarily with one parent but spend “substantial and significant time” with the other.[11]
[11] This term is statutorily-defined in s 65DAA(3).
The concept of “reasonable practicability” was authoritatively considered by the High Court of Australia in MRR & GR (2010) FLC 93-424. I will turn to that issue later.
Relocation cases often pose challenging questions. It is ordinarily the case that both parents have a legitimate “claim of right”. In this case the Mother has always been X’s primary carer and the Father’s orders do not seek to disturb that arrangement even if her relocation application fails.
The Full Court (Thackray, Murphy & Austin JJ) said in Zahawi & Rayne [2016] FamCAFC 90:[12]
[12] At paragraphs 43 – 48 of the joint judgment. Footnotes have been omitted
“[C]ounsel for the father sought to place particular reliance upon what was said about the position of “unchallenged custodians” in U v U and in particular what was said by Kirby J in referring to decisions of courts of appeal in Canada and England. Conformably with what had been said by the High Court in AMS that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U, and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:
…The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.
As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
and:
[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.
His Honour went on to say:
This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject. However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation. So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.
However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.
All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.”
I would also refer to the decision of the Full Court (Ainslie-Wallace, Murphy and Kent JJ) in Adamson & Adamson (2014) FLC 93 – 622. At paragraphs 65 and 66 of the joint judgment, their Honours said:
“It follows from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U & U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.”
In U & U [2002] HCA 36 the High Court held that the court is not strictly bound by the competing parenting proposals of each party; subject to affording each party procedural fairness it can craft different orders if required so as to meet the best interests of the child in any given case.
Each case must be determined on its own facts. The court has to weigh up each parent’s proposal by reference to the section 60CC factors, informed by the objects and principles set out in the Act.
The competing proposals here:
The Father is seeking equal shared parental responsibility and that he spend time with X in alternate weeks from after school Friday until commencement of school Tuesday, and in the other week from conclusion of school Monday until commencement of school Tuesday (being 5 nights per fortnight). He also seeks half of the school holiday periods.
When pressed for a “fall-back” position in the event of X relocating, the Father proposed that he spend time with X in alternate weeks from after school Friday until commencement of school Tuesday (being 4 nights per fortnight) together with half of the holiday periods. In short, the Father would forego his night in the “off week”.
On paper, the Father’s “fall-back” proposal is not radically different from his primary position. But in a practical sense there is a significant difference in that the Father would be much less involved in X’s day-to-day school and sporting activities.
If the Mother relocates to City B without X, then the Father seeks that X remain living with him and that the Mother spend time with X in the Region C locality on alternate weekends. He still seeks that school holidays be shared. (The Mother made clear however she will not relocate unless X can join her.)
The Mother seeks sole parental responsibility. She proposes that the Father spend time with X for two (2) weekends in each school term, being from 5pm Friday until 5pm Sunday and for half of the school holidays.
When pressed for a “fall-back” order in the event that X cannot relocate, she proposed essentially that the Father spend the same amount of time with him. This would be a significant reduction in the time the Father presently spends with X. The Mother also sought an additional payment of one hundred thousand dollars ($100,000) towards the cost of buying and selling a house in the Region C so she could provide “decent accommodation for the child”. Notably, if she was able to relocate to City B, then she only sought a fifteen thousand dollar ($15,000) payment from him.
As I was “teasing out” the issues as trial, it became apparent to me that the Mother did not really hold out any hope for a cash payment in either scenario. Rather, her claim was borne out of frustration and to “make a point” about her perceived disadvantageous circumstances in Town H insofar as housing affordability was concerned.
The Mother also conceded that she would agree to the Father spending more time with X in the City B area if the Father was willing to travel there. In truth she does not really oppose the Father spending four (4) nights per fortnight with him.
Best interests findings:
Primary considerations:
Section 60CC(2)(a) – the benefit to X of having a meaningful relationship with both parents:
X would definitely benefit from maintaining a meaningful relationship with both parents.
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J referred to the concept of a “meaningful relationship” as being a relationship which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one.
In Godfrey & Saunders [2007] FamCA 102, Kaye J, sitting as the Full Court, held that:
“…[T]he legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” [13]
[13] Paragraphs 33 and 36 of the judgment respectively
There is no doubt in this case that X can have the optimal relationship with his Father if he remains living in the Town H region.
The Father suggests that his relationship with X will be at risk if he relocates; he fears that the Mother will not promote the Father/Son relationship. He accuses the Mother of having a “long history of not promoting my relationship with X” and accuses her of obstruction. He says that she has a history of denying him time, or otherwise making the relationship with X difficult, whenever he stands up to her.[14]
[14] Paragraphs 8 - 10 of Father’s affidavit filed 3/10/19
In this respect, I think the Father is guilty of a “glass half empty” approach. The fact is that he had already developed a good relationship with X without the need for court orders. The Mother is no “alienator” and in fact she has invited him to move to City B himself.
Dr G confirmed that the Father had a good relationship with X.
The Father also puts aside other positive gestures by the Mother, including allowing him to take X to sports games (over her general opposition) and some other offers for extra time including at Easter 2019, an invitation to the Father’s Day breakfast at the school etc.
To be clear, I am not saying that the Mother has done everything she could to actively foster and promote the Father’s relationship with X - but she has always regarded the Father/Son relationship as very important and she has fostered it to a healthy level.
Somewhat ironically, I consider that the Mother would be more encouraging of the relationship between X and the Father if she was able to relocate. I say that because it is abundantly clear to me that the Mother is deeply resentful and feels “trapped” about having to live in the Town H region and, regrettably, some of that angst has coloured her attitudes and behaviours in recent times. For instance, she presented in an emotionally reactive manner in the Family Report interviews – saying things that on paper cause concern about her attitudes. But having seen and heard the Mother give her evidence, I consider that her adverse presentation was borne out of frustration and a sense of hopelessness about her situation.
The Father is in the fortunate economic position that he has no other children in his care and is financially comfortable. He has indicated that he would be willing to drive out to City B on an alternate week basis if necessary in order to see X. Having seen the Father and being well aware of his significant commitment to X, I accept that evidence. I also accept that it would be a great inconvenience to him and that it would involve him, in all likelihood, staying in temporary holiday-type accommodation. Dr G agreed that this is not ideal and that the quality of the Father/Son interactions will inevitably decrease even with the best of intentions, particularly in relation to sport and other activities and X’s school. But I am confident that the father would maintain an active role in X’s life and that he could still play a meaningful role.
In summary, I consider that both parents will have a meaningful relationship with X regardless of the orders I make. But the most meaningful relationship between Father and Son will be able to be fostered if X stays in the Town H region.
Section 60CC(2)(b) – the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence:
The Mother complains that at one stage the Father had made threats against Mr J, but the Father takes formal objection to this evidence. Notwithstanding that the rules concerning hearsay evidence are relaxed in parenting cases, I uphold the Father’s objections as in my view that evidence is unfairly prejudicial.[15]
[15] Paragraphs 116 - 118 and annexure 3 of the Mother’s affidavit filed 2/10/19
The Mother complains that the Father is “controlling” her by expecting her to stay living in the Town H region. While this may be understandable from her perspective, it cannot and does not constitute “family violence”.
The Mother raises a more serious concern in relation to the Father’s former business and its alleged shadowy connection to illicit drugs.
By way of background, when the Father formerly conducted the business he had sold synthetic drugs at a time when they were legal (around 2012). They were later illegalised. In this period the Father’s daughter Ms F became addicted to methamphetamine, at a time when she was working in the shop. She and her husband came to the attention of Police and welfare authorities.[16] Their children ended up in foster care for a time.
[16] See exhibit “M-5”
The Father later left the business, which was taken over by someone else. The Father owns the building; thus he remained involved to the extent that he was still the landlord.
The shop was raided by Police in 2016 and they found a large amount of (by then illegal) synthetic drugs.[17]
[17] Exhibit “M-6”
Disturbing events occurred some eight (8) months later in July 2017 at a time when the Father had briefly taken the shop back over. A male person living in the local area had contacted the Father, accusing him of supplying drugs to his mother. He said he knew where both the Father and his daughter Ms F lived. The Father defused the situation, explaining to this man that someone else was running the shop at the time and that it was definitely not the Father who had sold drugs to this man’s mother.
The next day, this man contacted the Father requesting a $300 loan. The Father loaned him the money.
A few days later, this man again contacted the Father and arranged to meet him in a carpark. The Father met him there, observing that there were other men present in his vehicle which was parked nearby. This man told the Father that he had a “car load of blokes here and we are gunna follow you back to your place” and he demanded $500 cash.
The Father, fearful of being assaulted, complied with the demand. He drove away to get some money. While he was doing so, this man contacted him again, saying “Make it a thousand dollars I’m not fucking around”.
The Father observed this man drive past his house while he was there at home getting the money together. The Father then met him a short time later and gave him the $1,000 - at which point the man apparently said “If you ever need security work done just let me know”.
The Father did not report this to the police as he was fearful of the ramifications. A few days later, this man again made demands – this time he wanted $1,000 put into his mother’s letterbox. He warned the Father “Don’t fuck me around”.
This time around the Father went to Police and they discovered that this man had an outstanding arrest warrant. They arrested him; he is in custody for various offences. Notably, the Father did not press charges against him.
The Mother points to this event as an indicator that the Father’s shop is involved in, or was previously involved in, the illicit drug trade and that there is a shadowy connection between his former business and some serious criminals in the area. There may be some basis for her concerns; certainly the Father told Police he was fearful of the ramifications if he made a complaint. The Mother also suggests that the Father’s shop had previously sold synthetic drugs to this man’s mother.
These events occurred some years ago and there is no evidence that X was present at any relevant time. I do not regard such matters as giving rise to an “unacceptable risk” to X when he is in the Father’s care - but they nonetheless cause me a degree of disquiet. The Mother’s anxiety concerning the shop and its past activities has an objective basis.
Returning to the risks associated with the Father’s daughter Ms F (and her husband), I note that her children have been returned to Ms F’s care and in my view any risk she poses has largely if not completely abated. Certainly the Father is well aware of his daughter’s prior drug difficulties and he actively assists her to care for her children. I do not see any unacceptable risk there.
Additional considerations
Section 60CC(3)(a) – X’s views:
X was exposed to the Mother’s desire to relocate from the very beginning.[18]
[18] On the car trip back from City B
Dr G recorded in the Family Report:
76.“…When X appeared to relax he was asked if he was willing to talk about his family. X nodded his head in agreement however, his eyes filled with tears and he went red in the face and looked down at the floor. The family consultant asked X what his understanding was of why he was here today, and he stated that it was because his mum wants to move to City B and he doesn’t want to. X then went red in the face, burst into loud hiccupping tears and sobs and could not easily catch his breath…
77.The family consultant then told X that he did not have to answer any questions or say anything that he did not want to, and that he could return to his mum whenever he wanted to. X nodded his head and indicated that he understood, and the family consultant asked X what it was that had made him so distressed. X replied that he does not want to move away and leave his friends and his school and his dad. He then started crying once more this time not as loud as the previous occasion and he was able to calm himself…
78.He stated that he loves school, particularly his teacher and his friends. He stated that he loves sports and he described his recent birthday party where his dad made a sports field for X. X described that his Father painted the sports boundaries on the grass and borrowed real sports nets from X’s sports club and X and his friends played sports for X’s birthday party. X then very quickly began to sob again and he stated that he does not have enough time with his dad. X stated through his tears that if his mum moved to City B he wants to live with his dad. He then began to uncontrollably sob once more. This was loud distressed crying and so the family consultant asked if he wanted his mum to come into the room and he nodded his head to indicate that he did.”
The Mother deposes that the night before the Family Report interview, X had returned to her care, and that he told her that his Father had told X “what to say”. But I am comfortably of the view that X does not want to relocate and that the Mother is well aware of this.
X genuinely wants to spend more time with his Father than the present arrangement of 4 nights per fortnight.
X is a bright child but given his age I consider that he does not fully appreciate the long-term consequences of relocating –v- remaining in the local area.
Section 60CC(3)(b) – nature of X’s relationships:
The Mother has always been X’s primary carer.
But X has an extremely close relationship with both his parents. He did not want the Father to leave at the end of the Family Report interview, nestling his face into his Father’s neck and beginning to quietly cry. Dr G considered that X in fact had an equal attachment to both parents. This may be partly a feature of the Father’s more “hands-on” parenting style.
The Mother conceded in the witness box that the Father and X are close. They share a natural bond, reinforced by their mutual interests.
X has a loving and close relationship with his half-sister D. He appears to have spent some fairly limited time with his half-sister Ms F and also her children who are closer to his age (his cousins).
X has a relationship with his older half-sister Ms E, who particularly helped care for him when he was an infant.
But given the age difference, X is on a different trajectory to all of his siblings.
X’s maternal grandmother also lives in the Region C. She and the Mother were estranged for a time. X’s relationship with the maternal grandmother does not feature much in the evidence but I presume they have some form of relationship.
Section 60CC(3)(c) – extent to which the parents have participated in X’s life and decision-making:
The parents are both actively involved. Their joint decision-making for X has not always been constructive, particularly of late.
Section 60CC(3)(ca) – extent to which each parent has fulfilled their obligations to maintain X:
The Father has paid child support to the Mother, initially by way of private agreement and in more recent times as assessed by the Child Support Agency. At present, those payments are only around $90.83 per month given that the Father is retired. The practical effect is that the Mother is presently bearing a disproportionate share of X’s day-to-day living costs.
Section 60CC(3)(d) – likely effect of changes in X’s circumstances:
If X remains living in the Region C and has increased time with his Father as he wishes, then he will personally be very happy about it. He will have the opportunity for ongoing regular interaction with both parents and there will be no practical impediments in terms of facilitating each parent’s relationship with him.
However, there will be a price to pay. The Mother will feel an ongoing sense of bitterness and resentment towards the Father about her situation. The Mother is quite resilient but I do not consider that she will “get over it”. She would take such an outcome very hard.
In my view, X would ultimately be adversely impacted by those dynamics.
If X were to relocate, he would initially be extremely upset if not devastated. However, I accept Dr G’s evidence that he is a resilient child and would cope. In time he may come to resent the Mother for not seeing the Father as much as he would like. In that event he may “vote with his feet” and move back to Town H when he is older.
Section 60CC(3)(e) – practical difficulties and expenses:
Relocation creates practical difficulties and expenses for the Father. Though manageable, they are nonetheless real. No issues arise if both parents remain in Town H.
Section 60CC(3)(f) – parental capacity:
In a practical sense, both parents have ample capacity to parent X. Their parenting styles are different – the Father is more actively involved, particularly in a sporting sense and the Mother is more “standoffish” but neither style is superior to the other.
I do however have some concerns as to the impact on the Mother’s parenting capacity in the event that she remains living in the Town H region against her will. Dr G said that while the Mother did have coping skills, there were potentially going to be some emotional problems for her if she stayed in Town H longer term.
Dr G observed that during the Family Report interviews the Mother was highly anxious and she found it difficult to express herself. She had difficulty regulating her emotions and at times she appeared, according to Dr G, “completely overwhelmed”. She struggled to explain her reasons for relocating. Notably, she cited her past traumatic experience through the courts in relation to her daughter Ms E who she contended had been sexually abused by D’s father. She considered that Ms E had been “treated terribly” by the court system and that it had caused further harm to her. She told Dr G that she felt that she could not trust the system; so she could not be as honest or forthcoming as might be expected.
At trial, the Mother “walked back” those comments, saying that she does trust the court system. I am unsure about that evidence but I am satisfied that both she – and the Father - respect and abide by court orders. Ultimately that is the important thing.
Dr G said that if the Mother stayed in Town H and her parenting capacity suffered, then this would be an adverse outcome for X. In the course of giving that oral evidence, it was clear that Dr G’s Family Report recommendation against relocation was by no means set in stone. She was noticeably guarded about the Mother’s future parenting capacity in the event that she stayed living in Town H.
Given her obvious unhappiness in Town H, Dr G floated the prospect of the Mother moving away to an alternative location, perhaps within a 100km radius. But the twin problems with that proposal were that it would potentially involve significant travel to and from school each day, and more fundamentally the Mother’s evidence was that she cannot afford to buy in the same locale anyway. She has her heart set on City B where she believes she can buy a home and where all her children would be living in the same place again.
The Father’s parenting capacity will not be impacted by where X lives.
Section 60CC(3)(g) – X’s maturity, sex, lifestyle and background:
X is a young boy who very much enjoys having his Father as a role model and an active participant in his life. He has won numerous school awards. Put simply, X is thriving in the Town H region.
Section 60CC(3)(h) – Aboriginality:
This is not a relevant consideration here.
Section 60CC(3)(i) – attitude to the child and to the responsibilities of parenthood:
The Father has always maintained such role in X’s life as the Mother has been willing to facilitate (or as the court has ordered). He will continue to do so. He is a devoted parent.
The Mother has also been a devoted parent. She made the choice to live in the Town H region so as to promote a relationship between X and the Father. Whatever difficulties she has had from time to time, she has always fostered that relationship albeit that in more recent times she has applied the terms of the orders. She cannot be criticised for that.
I pause here to observe that, although both parents are strong-willed, they manifest this in quite different ways. The Mother presents as the more emotionally volatile parent, willing to enter into unpleasant levels of conflict where she considers it necessary. She makes it no secret to those around her when she is angry or upset.
In contrast, the Father presents as the “cool and collected” parent. He is just as determined as the Mother but, because he tends to avoid open conflict with her, he comes across to others as being the easier one to get on with. This has manifested at X’s school and at sports, where the Mother now finds herself to some extent “on the outer”.
Section 60CC(3)(j) and (k) – family violence and related orders:
These are not relevant considerations here.
Section 60CC(3)(l) – whether it would be preferable to make orders that are least likely to lead to the institution of further proceedings concerning X:
This family are very much at a crossroads. Whatever orders I make will result in orders that I expect both parents will follow. The risk of future conflict and litigation is in my view greater if the Mother stays in Town H. There is also a risk that if X relocates he may later “vote with his feet” when he is older and return to the Town H region.
Section 60CC(3)(m) – any other fact or circumstance that the court considers relevant:
The Mother gives evidence that her daughter D is very unhappy in the Town H region and is very eager to move out to City B to be closer to Ms E. If the Mother cannot relocate X to City B, then D will in all likelihood remain living in Town H.
The Mother has never lived in City B. I have no direct evidence from Ms E that she will stay living in City B long-term. It is possible that Ms E or her partner – who works for Employer L – could transfer away in the future. However, the Mother is adamant that they love living in City B and have no intention of leaving.
Weighing the competing proposals by reference to the statutory pathway:
Parental responsibility:
There are presently substantial tensions between the parents in terms of X’s future parenting. In more recent times their communication has become increasingly strained and awkward.
This does not mean that they cannot co-parent cooperatively, but doing so would be challenging.
The parents have managed to register a surname for X (the Father’s), have him circumcised (at the Father’s instigation) and get him enrolled at school. Sport has been a major difficulty and religious participation has also proved problematic.
But fundamentally, decisions have been made, even if it has at times involved resentful acquiescence by the other parent.
I consider that it would be appropriate for the parents to have equal shared parental responsibility for major long-term decisions. In my view, the presumption that such an order would be in X’s best interests has not been rebutted. I add that major long-term decisions are unlikely to arise very often.
X’s living arrangements:
Upon making an order for equal shared parental responsibility, I must consider an equal time order: s 65DAA(1). But the Father disavowed any such application. He is only seeking five (5) nights per fortnight. Perhaps the Father figured that the Mother simply would not cope with an equal time arrangement, or that the arrangements would simply be too difficult for them to implement.
In any event, I do not consider that the parents have a sufficiently co-operative co-parenting relationship or sufficiently similar parenting styles and attitudes, for equal time to be workable. Equal shared parental responsibility is one thing, but equal time is very different. The former is manageable, the latter in my view would be too hard on X.
So, should X stay in Town H and spend five (5) nights per fortnight with the Father, together with all the other week-to-week interaction? Or should he move to City B and spend four (4) nights per fortnight with the Father who will be much less practically involved?
Somewhat unusually, this is a relocation case in which both proposals result in the Father spending “substantial and significant time” with X: s 65DAA(3).
There are real and direct advantages to X in spending 5 nights per fortnight with his Father, seeing him at numerous other occasions each fortnight (including at sport) and maintaining a life in which X is thriving.
However, I am also satisfied that the Mother would be a very unhappy primary carer, feeling “stuck” in the Town H region for potentially the next nine (9) years or so, by which time she will be sixty (60).
The Father submitted that although the Mother wanted to live in City B, there was no evidence capable of grounding a finding that her parental capacity would be adversely affected if she stayed in the locale. But in my view it is likely in this case that the Mother’s parenting capacity (including her co-parenting capacity) will be adversely affected if she feels “stuck” in Town H and I do not consider that she would be able to fully shield X from this. Staying in Town H comes at a real cost to the Mother’s emotional health and this will adversely impact X, particularly where the Mother will be continuing in the primary care role.
When considering the competing proposals, s 65DAA obliges me not only to consider X’s best interests, but also whether the competing proposals here are “reasonably practicable”.
In MRR & GR (supra) the High Court held that a finding of “reasonable practicability” was in the nature of jurisdictional fact. The High Court emphasised that s 65DAA is concerned with the reality of the situation of the parents and the child and not merely whether equal time (or substantial and significant time) is desirable.
Each parent’s proposal gives rise to “reasonable practicability” issues.
Relocation creates a distance issue but the Father says, and I accept, that he will make the road trips. He can afford to do so and he has available time. In the short term, X would be very unhappy but in time he would adjust. The physical distance between the parents would give them something of a “buffer” which in my view may well help them co-parent.
The Mother’s proposal is reasonably practicable, but it will not be easy to implement. X in particular will take some time to adjust, but he will do so - he is a resilient and high-achieving child.
If the Mother and X stay in Town H, the Mother will suffer emotionally as she will effectively have to live out the rest of X’s childhood in the Town H area. Her house is run down and I accept her evidence that it is in need of significant renovations. She does not think that it is worth paying the money necessary to improve the home. It has an outdoor toilet which would no doubt be less than pleasant to go to on a cold winter’s night.
She is adamant that she only ever bought that house so that she could stay in the area and promote a relationship with the Father. Her financial circumstances do appear modest.
She does not like living in the Town H region any longer. She finds herself to some extent “on the outer” at school and at sports. She is conscious of the Father’s much greater social capital in the area.
Town H being a small town, there is some force to the Mother’s complaint that the Father’s shop has “a reputation” which she is uncomfortable about X (or herself) being potentially connected to. I accept her evidence about the gossip and innuendo that she hears from time to time and that these things genuinely make her uncomfortable.
In my view, the Mother’s sense of isolation in Town H is very real. I think that its impact on her that should not be underestimated. While she struck me as an intelligent and articulate person, she is also rather headstrong in her views. She passionately believes that she (and D) are “trapped” in Town H.
When asked by Dr G what she would do if I decided that X should stay living in Town H, the Mother “became very distressed”.
In the end, although it is very finely balanced, I consider that X’s best interests would be best met by an order that he live with the Mother in City B rather than in Town H. I am satisfied that X will adapt and the Mother will be a much happier, more functional parent. I am satisfied that the Father can, and will, maintain an ongoing significant role in X’s life.
I consider the Mother’s proposal to be “reasonably practicable”. It is unnecessary for me to make a finding as to whether or not the Father’s proposal is “reasonably practicable” given that it is not in X’s best interests. However, I express serious reservations about whether it is, for the reasons set out above.
Conclusion & orders:
In the end, I have determined that X’s best interests will be served by the proposed relocation. X’s interests would be best served by spending significant, quality time with his Father but in circumstances where the Mother is supported to parent him in a much more positive manner.
I am satisfied that the Father will take every reasonable opportunity to spend time with X and to continue to actively participate in his life.
For these reasons I propose to make orders substantially in accordance with the Father’s “fall-back” position annexed to his affidavit of 11 March 2020. I will also incorporate a number of the Mother’s proposed orders as well. In my view the orders are self-explanatory.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 9 July 2020
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