WARDLEY & ULSTONE
[2012] FMCAfam 200
•12 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WARDLEY & ULSTONE | [2012] FMCAfam 200 |
| FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate child’s residence to New Zealand – girl aged 9 years and 4 months. FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – where parties had agreed to a shared parenting arrangement that had been in place since separation. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 60CD, 61DA, 65DAA |
| Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 |
| Applicant: | MR WARDLEY |
| Respondent: | MS ULSTONE |
| File Number: | SYC 4634 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 23-25 August, 12 December 2011 |
| Date of Last Submission: | 25 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell SC |
| Solicitors for the Applicant: | Cameron Gillingham Boyd |
| Counsel for the Respondent: | Ms Rees SC |
| Solicitors for the Respondent: | Clayhills |
ORDERS
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2002.
Orders 2 and 3 sought in the Amended Response filed on 16 March 2011 are dismissed.
The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia until the child completes her primary school education.
In the event that the Mother continues to reside in Australia, the child X is to spend equal time with each of the Applicant Father and the Respondent Mother on a week about basis until such time as the Mother leaves Australia to reside permanently in New Zealand.
IN THE EVENT THAT THE RESPONDENT MOTHER leaves Australia to reside permanently in New Zealand then the following Orders shall apply as and from the date of the Mother’s departure from Australia.
The child X is to live with the Applicant Father.
The child X is to spend time with the Respondent Mother as follows:
(a)For the entirety of the school holiday period at the end of Term 1 in each year from the first Saturday after school finishes until the Saturday before school returns;
(b)For the first half of the school holiday periods at the conclusion of Term 2 and Term 3 in each year, commencing from the first Saturday after school finishes until the Sunday eight days later;
(c)During the Christmas/January school holiday periods for the first half of the school holidays in even numbered years commencing in 2012 and for the second half of the school holidays in odd numbered years commencing in 2013; and
(d)At other times as the parties shall agree.
The Father shall facilitate X’s communication with the Mother at least twice weekly by means of telephone, email or Skype.
The Father must ensure that X communicates with the Mother by telephone or Skype on the following occasions:
(a)Mother’s Day; and
(b)The Mother’s birthday.
In the event that that the Applicant Father wishes to take X out of Australia for the purpose of a holiday, he is to provide the Respondent Mother with at least two (2) months’ written or email notice prior to the date of the proposed departure of the proposed departure and return dates and fourteen (14) days prior to the date of departure provide the Mother with a travel itinerary including flight times, accommodation and contact details.
Each party must promptly advise the other in the event that X suffers any illness or injury.
The Father must provide to the Mother copies of all X’s school reports and school photos within seven (7) days of the receipt of each report and school photos.
The Father is to hold X's New Zealand and United Kingdom passports except at times required by the Mother for any international travel by X with her mother.
For the purpose of X’s travel to and from New Zealand:
(a)The Father shall make all necessary airline bookings and advise the Mother at least fourteen (14) days prior to the date of the child’s departure for New Zealand; and
(b)The parties shall each pay one half of the costs of the child’s travel.
IT IS NOTED that publication of this judgment under the pseudonym Wardley & Ulstone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4634 of 2010
| MR WARDLEY |
Applicant
And
| MS ULSTONE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of a little girl named X for orders that the Mother’s application to relocate the child’s residence from Australia to New Zealand should be dismissed and that X should live with him.
The Mother seeks orders that the child should live with her and that she should be able to relocate to New Zealand with her. However, if the Mother is not permitted by the Court to relocate the child’s residence to New Zealand, she wishes to go to New Zealand anyway and the child would then live with the Father.
Area of Agreement
The parties agree that the Court should order that they should have equal shared parental responsibility for X.
Issues
The issue between the parties is whether the child should remain living in Australia, in which case she would live with her father, or whether she would relocate to New Zealand with her mother.
Orders Sought
The orders sought by the Father are set out in his Minute of Order, filed in Court by his counsel on the first day of the hearing.
The Father seeks these orders:
1.That the parents have equal shared parental responsibility for the child X born (omitted) 2002(“X)”.
2.That orders 2 and 3 as sought in the Mother’s Amended Response filed 16 March 2011 be dismissed.
3. That X live with the Applicant father.
4.That X spend time with the Respondent Mother as follows:
4.1For the entirety of the school holiday period at the end of term 1 in each year from the first Saturday after school finishes until the Saturday before school returns.
4.2For the first half of the school holiday periods at the conclusion of term 2 and term 3 in each year, commencing from the first Saturday after school finishes until the Sunday eight days later.
4.3During the Christmas school holiday periods for the first half of the school holidays in even numbered years and for the second half of the (school) holidays in odd numbered years.
4.4. At other times as agreed between the parties.
5.The Father shall facilitate X’s communication with the Mother at least twice weekly by means of telephone or Skype.
6.That in the event that the Applicant Father wishes to take X outside of Australia, he shall provide the Respondent Mother with at least two months’ written or email notice prior to the date of the proposed departure and return dates and fourteen days’ prior to any overseas travel provide the mother with a travel itinerary, including flight times, accommodation and contact details.
7.Both parents will promptly advise the other in the even that X suffers an illness or accident.
8.That the Father shall provide to the Mother X.’s school reports and photos within seven days of the date of receipt of the report or photos.
9.That the Father hold X's New Zealand and United Kingdom passports, except at times required by the Mother for any international travel by X with her mother.
The Mother seeks the orders set out in her Amended Response filed on 16 March 2011:
1.That the parents have equal shared parental responsibility for the child X born (omitted) 2002 (“X”).
2. That X live with the Respondent Mother.
3.That the Respondent Mother be permitted to relocate with X to New Zealand.
4.That the Applicant Father shall spend time with X as follows:
a.For the first school term holidays for the entirety of the holiday period from the first Saturday after school finishes until the Saturday before school returns.
b.For the second and third school term holidays for the first half of the holiday period from the first Saturday after school finishes until the Sunday in the following week.
c.For the Christmas school holiday periods for the first half of the gazetted school holidays in even numbered years and for the second half of the gazetted school holidays in odd numbered years.
d.At other times when the Applicant father travels to New Zealand of if the mother and X travel to Australia.
e. At other times as agreed between the parties.
f.That the mother shall facilitate and ensure that X communicates with the Applicant father at least twice weekly by any of the following means:
i. Email;
ii. Post;
iii. Telephone; and
iv. Skype.
5.That in the event that the Applicant wishes to take X outside Australia then he shall inform the Respondent Mother at least 2 months prior to the date of departure of his intention to travel with X and provide all details of the travel itinerary, including flight times and accommodation and contact details.
6.That the parties shall communicate with each other about X, other than in the event of an emergency, by email or by sms.
7.That in the event that the Mother is not permitted to remove X from Australia then the following shall apply:
a. X shall live with the Father; and
b.X shall spend time with the mother in New Zealand as follows:
i. For first school term holidays for the entirety of the holiday period from the first Saturday after school finishes until the Saturday before school returns.
ii. For the second and third school term holidays for the first half of the holiday period from the first Saturday after school finishes until the Sunday in the following week.
iii. For the Christmas school holiday periods for the first half of the gazetted school holidays in even numbered years and for the second half of the gazetted school holidays in odd numbered years.
iv. At other times when the Respondent mother travels to Australia.
v. At other times as agreed between the parties.
vi. That the Applicant father shall facilitate and ensure that X communicates with the Respondent mother at least twice weekly by any of the following means:
·Email
·Post
·Telephone; and
·Skype
8.That in the event that the Mother is permitted to remove X from Australia and the Father also relocates to New Zealand then the following shall apply:
a. X shall live with the Mother; and
b. X shall spend time with the Father as follows:
i. from after school on Thursday until before school on Friday on week 1 and each alternate week thereafter; and
ii. from after school on Thursday until before school on Monday on week 2 and on each alternate week thereafter extended to before school on Tuesday in the event that the Monday is a public holiday.
iii. for first half of all school holidays in even numbered years and the second half of all term school holidays in odd numbered years.
iv. from 9:00am until 5:00pm on Father’s Day.
v. for a period of three hours on X’s birthday.
vi. at such other times as agreed between the parties.
9.That the resident parent shall provide the other parent with X’s school report and photos within 7 days of the date of receipt of the report and/or the photos.
10.That for the purposes of X’s travel to and from New Zealand the parties shall pay one half of all such travel for X.
Background
Senior Counsel for the Father, Mr Schonell SC, has provided a useful chronology for the purposes of these proceedings.
The Father was born in the United Kingdom on (omitted) 1962. He is now 49 years of age.
The Mother was born in New Zealand on (omitted) 1969. She is 42 years of age.
The parties met in the United Kingdom in 1998 and commenced living together on 29th April 1992.
The child X was born on (omitted) 2002. She is now 9 years and 4 months old.
The parties and the child travelled to Australia in June 2004, living for a short while in Melbourne before settling in Sydney.
X attended day care in 2005 and pre-school in 2006.
The parties separated on 19th October 2007, when the Mother left the home. She commenced to live with the child in a nearby apartment.
The parties entered into an arrangement where the child lived with each of them for a week at a time.
X commenced attending school in February 2008. She attended (omitted) Public School.
At Christmas 2008 the Father and X travelled to the United Kingdom for a holiday.
In January 2009 the Mother and X travelled to New Zealand for a holiday.
On 9th December 2009 the parties entered into consent orders in the Supreme Court of New South Wales dividing their property.
At Christmas that same year the Mother and X spent three weeks with the Mother’s relatives in Brisbane.
On 22nd July 2010 the Father commenced proceedings in this Court, seeking orders permitting him to take X to the United Kingdom for a holiday in July and August. The application came before the Court on 27th July. The Mother agreed to the child travelling with the Father. That holiday took place between 29th July and 14th August 2010.
In August 2010 the Father purchased a home unit in Property W and commenced living there.
On 16th March 2011 the Mother filed an Amended Response seeking orders permitting her to relocate the child’s residence to New Zealand.
The final hearing took place between 23rd and 25th August 2011. Judgment was reserved.
On 12th December 2011 Orders were made by consent that:
a)The Mother was granted permission to take X to New Zealand for a holiday between 15th December 2011 and 3rd January 2012; and
b)The Father was granted permission to take X to the United Kingdom for a holiday between 4th January and 24th January 2012.
Evidence
The Father relies on the following:
a)his affidavit of 4th August 2011;
b)the affidavit of Ms D of 5th August 2011; and
c)the affidavit of Mr B of 8th August 2011.
Only the Father was required to give oral evidence.
The Father’s evidence was that he had left his previous employment in July 2010 and had been working casually as a (omitted) in the area of (omitted). His parents and sister continue to reside in the United Kingdom.
He deposed that he had been always been involved in the care of the child.
The Father stated that the separation was initiated by the Mother, without any prior discussion. He discovered on 19th October 2007 that the Mother had withdrawn “a significant sum of money” from the parties’ joint bank account. He deposed:
I rang National Australia Bank and an officer told me that their notes said ‘end of relationship’. The next day a removalist that had been booked by MS ULSTONE arrived. MS ULSTONE cut off the phone and cancelled our joint credit cards.[1]
[1] Affidavit of Mr Wardley 4.8.2011 at paragraph [49]
The Father stated that he chose to remain living in the parties’ former home to give X the continuity of living in the home where she had lived since the end of 2004. He declined some offers of employment because they would not have allowed him to be available for X’s care.
The Father deposed that X is progressing well at school and enjoys swimming. The Father takes her to swimming lessons on Saturday mornings. She attends ballet and jazz ballet lessons when she is with him. He says that she has developed a circle of friends and regularly attends birthday parties. She has a number of pets, including (omitted).
It is the Father’s evidence that during school time the child has spent approximately equal time with each parent. Each parent has taken the child away on holiday for two or three weeks at a time and “X has coped well with these longer periods away from each parent”.[2]
[2] Ibid at [82]
The Father does not wish to relocate to New Zealand. He gives these reasons:
I have no friends or acquaintances in New Zealand. I have no friends or family in New Zealand. I believe that my employment prospects are poorer in New Zealand than they are in Sydney. I do not intend to relocate to New Zealand.[3]
[3] Ibid at [87]
The Father maintained his position in cross-examination.
The Mother relied on her affidavit of 5th August 2011 and was cross-examined by senior counsel for the Father.
In her affidavit the Mother deposed that she is of (omitted) descent through her father’s family:
5…We come from the (omitted) tribe in the (omitted) Island. I have a strong connection with my (omitted) heritage. This is reflected in X’s middle name, X, which is the (omitted) name for the (omitted) found in the (omitted) Island.
6.The (omitted) is the principal (omitted) (tribe) of the (omitted) of New Zealand – (omitted) – the (omitted) Isle.
7. I registered as (omitted) in 1992. X is registered and the rest of my family.
…I was the one in the family that looked (omitted) and I have always felt a strong connection with this part of my identity.[4]
[4] Affidavit of Ms Ulstone 5.8.2011 at paragraphs [5]-7], [9]
The Mother stated that she attended a (omitted) course in New Zealand in 2010 involving the (omitted) ancient wisdom teachings. She deposed:
I am looking forward to fully embracing my culture on my return back to New Zealand and sharing this with X. The (omitted) vision is (omitted).[5]
[5] Ibid at [14]
It is the Mother’s evidence that she has always been X’s primary care giver. She was critical of the Father for not paying sufficient attention to the child complaining of a sore leg in January 2011, which turned out to be the result of a slipped hip joint.[6] She deposed that the child has asked her about the changes to her body as a result of the onset of puberty.[7]
[6] Ibid at [49]-[50]
[7] Ibid at [54]-[57]
The Mother claims that the child has expressed reluctance to travel to the United Kingdom with her father, because of the length of the flight and the fact that she would miss her mother.
It is the Mother’s evidence that the communication between the Father and herself has always been poor.
It is the Mother’s proposal that she would live in (omitted) New Zealand with the child. Her parents live on a property about 30 minutes drive from the (omitted) Central Business District. She and X have spent time with them and other members of her extended family when visiting New Zealand. Her brother owns a house in (omitted), a suburb of (omitted), New Zealand, which she will be able to rent.
The Mother proposes that X would attend the (omitted) School, the local primary school. Her high school education would take place at (omitted) School.
The Mother deposed:
161.My decision has been a very difficult one to make. I am just no longer able to sustain living here and be the person that I want to be…
162.I believe that X’s best interests are met by living with me in a place where there are cultural roots and that I am living a life that is fulfilled and happy, supported by my family.[8]
[8] Affidavit of Ms Ulstone 5.8.2011 at [16]-[162]
The Mother has strong views about the need for her to live in New Zealand, stating at [169]:
I have come to the view that I must return to New Zealand even if this Honourable Court decided that X cannot come with me. I need to be at home in New Zealand to connect with my heritage, my family and my culture.[9]
[9] Ibid at [169]
The Mother gave oral evidence. She said that she had last worked in New Zealand in 1999. She anticipated that she would be working full-time, from Monday to Friday.
She reiterated that if the Court were to determine that X was not to go to New Zealand, she would want the same orders as she proposed would apply to the Father if the child were to go to New Zealand.
The Mother also relied on the evidence of her cousin, Ms P, who resides in (omitted), New Zealand. It was Ms P’s evidence that the Mother and X have a close relationship and that the child turns to her mother for comfort and support. She deposed in her affidavit that she would be able to assist the Mother if she were able to bring X to live in New Zealand.
Ms P said in cross-examination that her parents live in a suburb of (omitted) New Zealand. Her brother lives about 95 kilometres from (omitted) New Zealand and her sister livers about 10 kilometres from (omitted) New Zealand.
The Mother also relied on the evidence of a psychologist, Ms J, who had prepared a report. Ms J was cross-examined by Mr S of senior counsel, who was critical of the relevance of her evidence.
The Mother relied on the evidence of Mr O, a (omitted) elder. He was not required to give oral evidence.
The Family Report
A Family Report was prepared by Mr L, a Regulation 7 Family Consultant.
For the purposes of the Report, Mr L interviewed the Mother and the Father. He observed each one of them with X and interviewed the child by herself.
Mr L reported that the Father had questioned the Mother’s need to live in New Zealand, as her interest in her (omitted) heritage had only emerged after separation:
He added that because she is only one sixteenth (omitted) and that her parents do not participate in (omitted) culture, her need to culturally identify seems unjustified.[10]
[10] Family Report page 6 at paragraph [9]
The Father told the Family consultant that he objects to the child’s relocation to New Zealand because it was “more balanced” for the child to live in Australia, as she can more readily keep in contact with her relatives in England.
The Mother told Mr L that she had always felt a connection with her (omitted) heritage since she learnt about it at the age of fifteen:
She pointed out that for the last one and a half years she has felt increasingly drawn to a process of “reclaiming and reconnecting”. She needs to have meaning and purpose, a goal which was accentuated when she attended a course which was addressed by a tribal leader. She said that the “current situation” in Sydney is “untenable” for her and that she will live in new Zealand irrespective of the outcome of these proceedings.[11]
[11] Family Report pages 8 and 9 at [17]
The Mother told Mr L that X’s relationship with her father was strong and would not be diminished if the child were to live in New Zealand. She said that X and her father seemed to have a good relationship.
Mr L observed the interaction of X with each of her parents. He described he relationship with her mother as “positive and close”.
Mr L said that:
X’s interaction with her father resembled her interaction with her mother. Her affect was positive as she continued to converse and laugh…As with her mother, it was clear that the child has a close relationship with her father who fondly encouraged the child.[12]
[12] Ibid page 10 at [21]
The child told Mr L that she understood that her parents will not return to live together, which is what she would like, but that “living with each parent equally is the alternative arrangement she prefers”.[13]
[13] Ibid at [24]
The child said she would be “sad” if she were to live in New Zealand with her mother away from her father and “more sad” if she were to live with her father in Australia away from her mother.
In his evaluation, Mr L stated that X had adjusted to her parenting arrangements and had come to rely on spending equal time with each parent:
She indicated an emotional inclination towards her mother when she said that she misses her more than her father. It was clear, however, that the child has solid relationships with her mother and father and that it is in her best interest for the status quo to remain.[14]
[14] Family Report page 12 at [29]
Mr L noted that the Mother had clearly stated that she would move to (omitted), New Zealand and leave X with her father if the child could not accompany her. Whilst he said that the child leans emotionally towards her mother, she values and enjoys her relationship with her father:
She would miss Mr Wardley and would need to adjust to his absence. Ms Ulstone’s plan, to deprive X of a continuing and face to face relationship with her father, has clear implications for the child. The disruption would only be justifiable if Ms Ulstone is motivated by a compulsion to join her family and explore her ethnicity, the denial of which would compromise her mental health.[15]
[15] Ibid at [32]
Mr L went on to add these cautionary words:
Because Ms Ulstone has lived away from her home country for well over ten years, it is understandable that she now wants to return, but, it may be that she has an optimistic view of life in New Zealand and the benefits she would accrue by pursuing her goals there. Ostensibly, it would seem more appropriate for her to delay her plans until X finishes primary school and the child’s interests extend outside the family.[16]
[16] Ibid at [33]
Mr L noted that the child would be distressed if her involvement with her father were to be diminished, but she would be more distressed if she did not live with her mother.
The recommendation in the Family Report is that:
X live with her mother and spend seventy percent of school holiday periods with her father. She might also spend three days during each mid-term period with Mr Wardley.[17]
[17] Ibid
Mr L gave oral evidence and was cross-examined by senior counsel for each party.
In reply to a question by senior counsel for the Mother, Ms Rees SC, Mr L withdrew somewhat from his recommendation that the best scenario for X would be for her to remain living in Australia. This was because the Mother had said that remaining in Australia was ‘untenable’ for her and the child is more emotionally inclined towards her mother.
Mr L said that there would be various emotional consequences for the child if she were not to go to live in New Zealand. X had told him that she would be very sad if that were to occur. It would be difficult for her as she seemed to be more emotionally inclined towards her mother.
In cross-examination by Mr Schonell SC, for the Father, Mr L said that the “next best” outcome for X would be if the Mother were to defer her move to New Zealand until the child finished primary school.
Submissions
The Court had the benefit of comprehensive and helpful submissions from senior counsel for the Applicant Father and the Respondent Mother.
Mr Schonell SC submitted that the Court had not only to consider the matters in s.60CC and other relevant sections of the Act in a case of this type, but a number of significant issues:
a)In the case of a parent who seeks to move away and have the child come with them, how will that parent facilitate time with the other parent? This will involve an assessment of the parenting history and attitude to the time of application;
b)The next issue is whether that parent will properly promote the relationship between the child and the parent who is remaining;
c)Has that parent embraced the concept of joint parental responsibility?
d)Are the parents able to communicate about significant matters in relation to the care of their child?; and
e)Is the application to move an attempt to alienate the other parent from the child?
Mr S submitted that there were concerning aspects about the Mother’s motivation and attitude. There was evidence of her making unilateral decisions in relation to X’s welfare, being decisions made without consultation with the father.
The lack of communication between the Mother and the Father had arisen almost entirely of the Mother’s choosing. There is no face to face communication and indeed, he submitted, communication is almost non-existent.
Significantly, Mr S submitted that:
...the Mother is seeking to place her journey of personal discovery of her cultural heritage above the needs of X to maintain a relationship with each of her parents, that the mother is seeking to move the child away fro a settled and established regime to one of a significant degree of uncertainty and lastly that the mother has sought in the past and by reference to her two applications before the court to unreasonably and without foundation seek to reduce the father’s time with X.
Further, Mr S submitted that the Mother had unilaterally determined what is in the child’s best interests. He decision to move to New Zealand and her communication of that to the Father is “but another example of her failure to properly have regard to the obligations of parental responsibility.”
It was also submitted that the Father’s decision that he cannot move to New Zealand was well founded, noting that he had suffered from depression on two prior occasions. The Father’s happiness and needs are of as equal importance as the Mother’s are. He cannot properly parent X if he is not functioning as an adult. Mr S compared the Father’s needs with those of the Mother and submitted that there is no psychological or health imperative for her to go to New Zealand.
Mr S submitted that there were two alternatives for the child.
First:
…she stays in Sydney with her father where she’s happy, she’s thriving, she has friends, she’s doing well at school, she’s in a known environment. She is in the care of a parent who wants to communicate with the other parent, who encourages a relationship with the other parent and who does not place his own interest first. She is with a parent who wants to encourage and continue the settled regime and yes, she will miss her mum. There is no doubt about that, but the alternative is worse for X.
The alternative, as counsel for the Father submitted, is:
…this little girl who needs support if things are new is going to be uprooted, taken somewhere her support structures are completely absent. No father, mother working fulltime, no connection with environment or school or friends. The availability of family support in New Zealand is questionable. The move is quick and not thought through and there is an assumption on the mother’s part that it will be everything that she hopes it to be. The concern, however, that most rails against a move to New Zealand must be that she is in the care of the parent who has an exclusive view about parenting, who doesn’t value the need to communicate…
…She actually goes out of her way to minimise communication. She doesn’t consult the father about important matters, indeed dictates to him the agenda and seeks to reduce, for no reason that is articulated anywhere, the amount of time.
It is the Father’s case that the Mother’s proposal to move X’s residence to New Zealand is not in the child’s best interests
Senior counsel for the Mother, Ms R, submitted that the Father’s allegations that the Mother had been uncooperative with the shared parenting arrangement that had been in place since 2007 were not borne out by the evidence. The arrangement had been agreed to by the parties and
…although the dynamics of that arrangement have changed from time to time in ways that both parents agreed were appropriate for X, that have always agreed on what the arrangement should be, how many days she would spend in each place, how those arrangements would be changed and how their joint care of X would logistically be carried out.
The parties had been cooperating about the child’s arrangements for four years.
Ms R submitted that, whilst the Mother’s support network in New Zealand is uncertain or unreliable, the Father’s support network does not seem to be any better. He has filed affidavits from two friends about the child, but neither seems to say that they are there to help. The Father has no family support in Australia.
It was submitted that Mr L when in the witness box resiled from the recommendation that the current status quo was the preferred option. If it was untenable for the mother to remain in Australia it would affect her parenting.
Further, an advantage of the Mother’s proposal is that:
X will wake up every morning in her mother’s care and she will go to bed every night in her mother’s care.
As Ms Rees SC correctly put it, the Court has to decide whether this little girl lives with her mother in New Zealand or with her father in Sydney. There is no middle ground.
It was further submitted that Australia is not home to either parent. The Father is homesick for England. The Mother is homesick for New Zealand:
There is no proposition before the court that would allow X to live close to her family in England, but there is a proposition before the court that would allow her to live closely to her family in New Zealand and that is clearly something that it important to X…
If the child were to live in New Zealand, she would continue to have the advantage of a meaningful and rich relationship with her father, albeit that she would not see him as often as she does now.
It was submitted that the Mother could not be criticised for coming to a decision that was right for her as a person and as a mother. Her membership of the (omitted) is clearly important to her and, as Mr O said in his affidavit, to be fully part of the (omitted) tribe it is necessary to be living in New Zealand:
Being fully a part of the life of the tribe requires regular and substantial contact with other (omitted) and with (omitted) events and gatherings…
One can be (omitted) with a quite minimal degree of all these things but one cannot be fully part of the life of the (omitted) tribe without living in New Zealand.[18]
[18] Affidavit of Mr O 3.7.2011 Annexure “B”
The Relevant Law
In the relatively recent decision of Murphy J in Mallahan & Mallahan[19], his Honour considered at [14]-[39] the principles to be followed in parenting cases involving relocation issues, in the light of the decision of the High Court in MRR v GR[20]. Murphy J stated at [14]:
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision is signposted by a number of mandatory considerations.[21]
[19] [2010] FamCA 631
[20] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[21] [2010] FamCA 631 at [14]
Of relocation cases in particular, his Honour said:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.[22]
[22] [2010] FamCA 631 at [27]
In Morgan & Miles[23], an appeal from a decision of the Federal Magistrates Court, Boland J said at [80]-[81]:
80.It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
[23] [2007] FamCA 1230; (2007) FLC 93-343
81. What the legislation now requires is:
- considering of the competing proposals against the criteria now in s.60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes[24] a requirement that matters under s.60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.[25]
[24] sic
[25] [2007] FamCA 1230; (2007) FLC 93-343
When the Court is deciding whether to make a parenting order, section 60CA of the Family Law Act requires the Court to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters in subsections 60CC(2), the primary considerations, and 60CC(3), the secondary considerations.
When making a parenting order, the Court is required by s. 61DA of the Act to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests (s.61DA(4)).
Where the Court does make a parenting order providing that a child’s parents are to have equal shared parental responsibility, subsection 65DAA (1) requires the Court to consider whether the child spending equal time with each parent is both in the child’s best interests and is reasonably practicable.
If the Court does not make an order for the child to spend equal time with each parent, the Court is required by subsection 65DAA(2) to consider whether the child spending substantial and significant time with each parent is both in the best interests of the child and reasonably practicable.
I have considered all of the above matters.
Conclusions
Although the parties each seek an order that they should have equal shared parental responsibility for X, it is not necessarily the case that the Court will make such an order. The Court must still consider the matters set out in s.61DA.
The Father has sought an order for equal shared parental responsibility, but senior counsel for the Father has, in his submissions, raised issues that would argue against such an order. Mr S questioned whether the Mother had in fact embraced the concept of joint parental responsibility and whether the parties were able to communicate about significant matters in relation to the care of their child. He submitted that the Mother’s decision to move to New Zealand and her failure to communicate that to the Father was another example of the Mother’s failure to have proper regard to the obligations of parental responsibility. He also submitted that the mother had gone out of her way to minimise communication between the parties and had not communicated important decisions about the child to him.
Of course, senior counsel for the Mother has submitted that the parties had cooperated in matters about the child for four years. They had agreed upon a week about arrangement for shared care which had worked reasonably well.
Whilst the Court must have some misgivings about the viability of equal shared parental responsibility in the circumstances, the parties have cooperated reasonably well, notwithstanding the Mother’s attempts to minimise communication between them. The Court is considering an arrangement for the future, which, on the parties’ proposals, will be considerably different from the one that presently exists.
There are only two proposals before the Court:
a)Whether the child relocates to New Zealand and lives with the mother; or
b)Whether the child remains living with her father in Sydney.
The Court is not considering a proposal for the Mother to remain living in Sydney. She has specifically stated that she will go anyway, whether or not she is permitted to take X with her.
Similarly, the Court is not considering a proposal for both parties to live in (omitted), New Zealand, because the father has specifically ruled that out.
As Ms R has submitted, there is no middle ground.
Thus, the Court must look at the situation where the child’s mother and father are going to be living on opposite sides of the Tasman Sea. They each say that they want an order for equal shared parental responsibility and, in looking to the future, the Court will order accordingly.
This, of course, brings into play the considerations in s.65DAA of the Act, which involves an examination of the best interests of the child. It is fair to say, however, noting that the parents intend to be living in Sydney and (omitted), New Zealand respectively, that an order for the child to spend equal time with each parent is not reasonably practicable. It is not practicable at all.
The question of substantial and significant time also needs to be viewed in the context of two parents living in Australia and New Zealand. It is difficult to arrive at an arrangement that would meet the requirement for substantial and significant time as defined by subsection 65DAA(3) without the child spending a considerable time in an airliner. This is clearly not reasonably practicable.
There is a benefit to X in having a meaningful relationship with each of her parents. The evidence is that she has a warm relationship with each parent and would miss one parent if she were living away from the other.
There is no evidence of any need to protect the child from physical or psychological harm from abuse, neglect or family violence.
The child’s views have been expressed through the Family Report prepared by Mr L. One of the ways in which the Court can inform itself of the views of a child is by having regard to what is said in the Family Report (s.60CD). She was born on (omitted) 2002, so she is nine years and four months old. Her views should be given some weight.
X told Mr L that she would be sad if she were to live in New Zealand away from her father and more sad if she were to remain living in Australia away from her mother. This is a consideration to which the Court will attach some weight because of the child’s age and level of maturity.
The child has a positive and close relationship with each of her parents. There was no direct evidence of her relationship with other people.
The Father raises some concerns about the Mother’s willingness to facilitate and encourage a close and continuing relationship with him, noting her desire to take the child out of the country. The Mother has said that X’s relationship with her father is strong and would not diminish if she were to live in New Zealand and the Father remained in Australia.
It is noteworthy that the orders that the parties seek about the child’s time with the other party are virtual “mirror images” of each other, which has to be an argument in favour of the proposition that each party intends to encourage the child’s relationship with the other party.
The likely effect of the proposed changes in the child’s circumstances will be significant. The Mother’s proposal is more drastic, involving the child living in another country and commencing a new school in a different education system.
In each case the child will be living with one parent and away from the other. Either way, there would be an emotional impact on the child.
By definition, there will be some practical difficulty and expense in the child spending time with and communicating with the other parent. Communication can be by email, telephone or Skype, but face to face communication with the non-resident parent will involve either the child or the parent travelling internationally by air. It is a matter of public knowledge that there are regular flights between Sydney and (omitted), New Zealand and the journey each way takes less than four hours. However, it would hardly be feasible for the child to see the other parent on, say, a fortnightly basis, and time spent with the other parent will mainly be during the school holidays.
Each of the child’s parents has the capacity to provide for the child’s needs, emotional and intellectual needs. Mr L has stated that, if the Court were to find that X should remain living with her father:
…then this assessment indicates that Mr Wardley has the parenting capacity and focus to meet the child’s need for care and attention.[26]
[26] Family Report page 14 at [34]
X is a little girl aged nine years and four months. She has lived most of her life in Australia. Her father comes from the United Kingdom and still has extended family there. Her mother was born in New Zealand and has extended family there, as well as in Australia. The mother has a (omitted) heritage which she is keen to pursue.
X is neither Aboriginal nor Torres Strait Islander, but she has a (omitted) heritage, through her mother, as a member of the (omitted) tribe. If she were living in New Zealand permanently it would be easier to be involved in the (omitted) side of her background than if she were to remain living in Australia.
The Father has criticised the mother for her attitude to the child and to the responsibilities of parenthood. The Mother wants to go back to New Zealand to live. She has said that she will go, whether or not she is able to take X with her.
In this regard, the Mother is putting her wish to live in New Zealand above her wish to have her child live with her.
However, it can be argued that the Father, in saying that a move to New Zealand is out of the question for him, is also putting his wish above his wish to have his daughter living with him. He wants to continue the arrangement that has been in existence for the past four years because he believes that it will provide for stability in the child’s life.
There are no family violence issues and no family violence orders in place.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This is often hard to predict, but the best order must one which pays due regard to the best interests of the child.
The Mother clearly wishes to relocate herself to New Zealand, the land of her birth. She does not have to demonstrate a compelling reason to do so and the Court cannot make an order forbidding her to do so. She is a citizen of New Zealand and has a right to live there, which cannot be affected by an Australian Court. The Court’s concern is the child, and the Court does have the power to restrain the Mother from taking the child to live outside Australia.
The Family Report supports the Mother’s move to New Zealand with the child, but, with respect, it appears that the Mother is tipping the scales by saying that she intends to go no matter what:
Whatever Ms Ulstone’s motivation, it seems that she has decided to go irrespective of the outcome of these proceedings.[27]
[27] Family Report page 13 at [33]
The child has been found to be more emotionally inclined toward her mother, but she has a strong and positive relationship with each parent.
One matter that the Family Report considered was the timing of the proposed move to New Zealand with the child. Mr L said in paragraph [33] of the Report:
Ostensibly, it would seem more appropriate for her to delay her plans until X finishes primary school and the child’s interests extend outside the family.[28]
[28] Ibid
In my view, a delay in moving the child’s residence to New Zealand until she finishes primary school would be a more child-focused decision, and it is unfortunate that the Mother has chosen to put her own wish to return to New Zealand ahead of a plan which would appear to guarantee more stability in the child’s life.
Accordingly, I am satisfied that the Mother should be restrained from relocating X’s residence from Australia to New Zealand until the child completes her primary school education. It would seem to be more consistent with the child’s stability if her primary education could be complete before she commences high school, whether or not that high school were to be in Australia or New Zealand. There is no evidence before the Court about the comparative merits of high schools in Sydney and (omitted), New Zealand, but I am satisfied that the Court should place some weight on this aspect as set out in the Family Report.
It will be a matter for the mother as to whether she continues with her plan to move to New Zealand at this stage or whether she delays her plan until the child finishes primary school. If the Mother chooses to remain living in Australia, then the current situation should continue, namely that the parties should share the care of the child equally on a week-about basis.
However, if the Mother chooses to leave for New Zealand, then X should live with her father, as proposed by the Father’s Minute of Orders.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 March 2012
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