Whitlock and Whitlock
[2014] FCCA 448
•13 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITLOCK & WHITLOCK | [2014] FCCA 448 |
| Catchwords: FAMILY LAW – Children – Relocation – children’s best interests – primary and additional considerations – meaningful relationships – children’s views – whether one consideration can be determinative. |
| Legislation: Family Law Act 1975, ss. 60B, 60CA, 60CC, 65DAA |
| Bolitho and Cohen (2005) FLC 93-224 MRR v GR (2010) FLC 93-424, [2010] HCA 4 P & P [2006] FMCAfam 518 |
| Applicant: | MS WHITLOCK |
| Respondent: | MR WHITLOCK |
| File Number: | LNC 768 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 3 and 4 February 2014 |
| Date of Last Submission: | 4 February 2014 |
| Delivered at: | Launceston |
| Delivered on: | 13 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Walker |
| Solicitors for the Applicant: | Walker Henderson Lawyers |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
ORDERS
That MS WHITLOCK (“the mother”) and MR WHITLOCK (“the father”) have equal shared parental responsibility for A born (omitted) 2003 and B born (omitted) 2004 (“the children”).
That in the event that the mother remains living in the vicinity of X in Tasmania:
(a)the children are to live with the mother and father on a week about basis during school terms with change-overs to be on a day to be agreed between the mother and the father but failing agreement on Fridays; and
(b)change-overs on school days are to take place before or after school (as the case may be) and changeovers on non-school days are to take place at or about 5.00pm.
That in the event that the mother does not remain living in the vicinity of X in Tasmania:
(a)the children are to live with the father; and
(b)during school terms the children are to spend time with and communicate with the mother each second weekend from after school on Friday until 5.00pm on Sunday (extended on long weekends to 5.00pm on Monday) with change-overs to take place at the (omitted) or such other place as the parties may agree.
That during school holiday periods the children are to live with each parent on a week and week about basis.
That in 2014 and in each alternate year thereafter the children are to live with the mother from 3.00pm on Christmas Eve to 3.00pm on Christmas Day and with the father from 3.00pm on Christmas Day until 5.00pm on Boxing Day.
That in 2015 and in each alternate year thereafter the children are to live with the father from 3.00pm on Christmas Eve to 3.00pm on Christmas Day and with the mother from 3.00pm on Christmas Day until 5.00pm on Boxing Day.
That at Easter the parent scheduled to spend time with the children on Good Friday is to have the children from after school on the Thursday prior to Good Friday until the following Wednesday at 5.00pm and the other parent is to spend time with the children from Wednesday at 5.00pm until the commencement of school on the following Monday.
That on the children’s and the parent’s birthdays the parent with whom the children are not living on the relevant day is to spend time with the children from after school (or 5.00pm if it is a non-school day) until the commencement of school the following day (or 5.00pm if it is a non-school day).
That the children are to spend Mothers’ Day with the mother from 5.00pm on the Saturday preceding Mothers’ Day until 5.00pm on Mothers’ Day.
That the children are to spend Fathers’ Day with the father from 5.00pm on the Saturday preceding Fathers’ Day until 5.00pm on Fathers’ Day.
IT IS NOTED that publication of this judgment under the pseudonym Whitlock & Whitlock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 768 of 2010
| MS WHITLOCK |
Applicant
And
| MR WHITLOCK |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Relocation cases often cause significant anguish for the parents and children involved and are difficult for Courts to decide. The difficulties were succinctly stated by Judge Brown in P & P as follows:[1]
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[1] P & P [2006] FMCAfam 518 at paragraph 25
Judge Brown had also said earlier at paragraph 21 that “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result”. This case is no different.
The applicant in this matter is MS WHITLOCK (“the mother”) and the respondent is MR WHITLOCK (“the father”). They started living together in 1996 and married in 2002. They separated in early 2009 and their divorce became effective in early 2013.
There are two children of the parties’ relationship, A born (omitted) 2003 and B born (omitted) 2004. I shall refer to them individually as “A” and “B”, or collectively as “the children”.
In December 2010 the mother made an application for orders to enable her to relocate with the children from X to (omitted) (in Tasmania). That application was resisted by the father and in May 2011 Judge McGuire set the matter down for hearing before me in September 2011.
In September 2011 the parties entered into consent interim orders which provided for:
·equal shared parental responsibility for the children;
·the children to live with the mother in X;
·the children to spend time with the father during school terms for four nights in one week of a fortnightly cycle and for two nights in the other week;
·the children to spend time with the father for half of school holidays; and
·agreed arrangements for special occasions.
The matter was otherwise removed from the Court list by consent, with liberty to either party to restore it to the list provided that such liberty was not exercised before October 2012. There was also a notation to the orders that the parties would attend upon a Family Consultant in December 2012 to consider whether the children should spend equal time in each household.
Those relatively long term interim orders had been based in large part upon the recommendations of Family Consultant Ms B (“the Family Consultant”) contained in her Family Report of 14 April 2011 (“the first Family Report”).
The parties met again with the Family Consultant in December 2012 as planned and she provided a further report to the Court (“the second Family Report”). It was provided to the parties on 9 January 2013.
In April 2013 the mother filed an Amended Initiating Application in which she sought leave of the Court to relocate with the children to the Y area and orders that the father spend time with children for three out of every four weekends during school terms and for half school holidays. At the end of May 2013, the father filed an Amended Response in which he sought orders that the children live equally with him and the mother on a rotating weekly basis.
On 27 May 2013, the matter was set down for hearing in Burnie in December 2013 and a “brief updating” Family Report was sought (“the third Family Report”).
The third Family Report was provided to the parties in November 2013. However, the hearing in December 2013 was adjourned to be heard in Launceston in February 2014. That adjournment was largely caused by the mother’s state of health late last year. In that regard, the Family Consultant said this in her third Family Report:[2]
Very recently [the mother] has been having daily treatment for breast cancer in Y. Consequently for about six weeks up to and including the week of the family assessment the children have been living primarily with [the father] and spending time with their mother on alternate weekends. Both parents indicated that they expected to revert to the usual arrangements the following week.
[2] See paragraph 3.
During August 2013 the children lived with their father while the mother underwent surgery to remove a tumour. Commencing in September 2013, the children lived predominantly with the father while the mother received radiotherapy for a further period of approximately six weeks. The mother stated in her oral evidence that no further treatment is planned, but she did not provide any corroborative medical evidence.
In 2010 the mother’s wish to relocate to (omitted) in Tasmania had been motivated mainly by her desire to be closer to supportive relatives. By 2013, she had formed a relationship with Mr B (“the mother’s partner”) who lives on the outskirts of Y. They each say that they plan to marry. Certainly, the mother’s unchallenged evidence is that the relationship is serious and she regards it as permanent.[3]
[3] See paragraph 42 of her trial affidavit.
There appeared to be general acceptance that if the mother moves to live in the Y area and the father remains in the vicinity of X, it will add approximately one hour each way to the travelling time between their respective homes. Consequently, it is safe to assume that it will also add approximately one hour each way to the travelling time between the home of the “absent parent” and the children’s new school.
In her trial affidavit the mother said: “If the decision is that I cannot relocate the children I would find this very distressing. However, I feel that I absolutely must go to Y myself”.[4] She did not resile from that position during the hearing.
[4] Paragraph 88
Each party’s case
As stated above, the mother’s current wish is to relocate in order to live with (and marry) her new partner and to be closer to her relatives. Her partner has a business that he operates from his property on the outskirts of Y.
The arguments in support of her case were summarised as follows in the Case Outline filed on her behalf:
(a) It is the Mother’s position that she is and always has been the primary carer for the children (save for a brief period since separation during her cancer treatment) and is the one to whom the children have their primary attachment.
(b) The Mother’s position is that there has been a reasonable parenting relationship between her and the Father and shared parenting is indicated but that there are factors which indicate that equal time is not in the children's best interests.
(c) The Mother contends that she has at all times promoted the relationship between the children and the Father and this has resulted in increased time beyond that set out in the Family Report.
(d) The Mother contends that it is still in the children’s best interests to have a stable home base with her whilst having substantial time with the Father and this is best effected by continuing her primary care and applying the arrangements set out in her proposals above.
(e) The Mother contends that her proposals provide for a meaningful relationship between the children and their Father.
(f) The Mother contends that the Family Reporter has placed too much emphasis on the Father’s care during her cancer treatment and on A’s alleged wishes.
The father’s counsel informed the Court that his client’s preferred option was that the mother should not relocate to Y and that the children should spend time equally in each household. However, if the mother chooses to relocate, then the children should live predominantly with him and spend substantial and significant time with the mother.
The father’s case was succinctly set out as follows in the Case Outline filed on his behalf:
1. It is submitted that the best interests of the children will be promoted in an environment where they have the opportunity to spend equal time with both parents.
2. There is no criticism of the father's parenting capacity and in particular he does not subordinate the interests of the children to his business commitments.
3. The parents have demonstrated the capacity to communicate well for the benefit of the children.
4. The children have demonstrated the capacity to adapt without difficulty to the arrangements agreed between the parents.
5. In the event that the mother is unable to accept the proposition that she remain in the X area then the next best outcome for the children's best interests (and one which best accommodates their wishes) is an outcome where they live primarily with their father and spend substantial and significant time with their mother.
In this case, the reality is that if the mother is permitted to relocate the children’s residence to the Y area and the father continues to live in the vicinity of X, it will be impracticable for the children to spend equal time in the two households. In MRR v GR,[5] the High Court made it clear that Courts should not consider making orders for equal time if the results will not be “reasonably practicable”.
[5] MRR v GR (2010) FLC 93-424, [2010] HCA 4
The evidence
The mother relied upon her trial affidavit and one each from her partner and a manager at her place of employment. All three gave oral evidence.
The father relied only upon his trial affidavit and he also gave oral evidence.
The Family Consultant’s three Family Reports were admitted into evidence and she was cross-examined by counsel for both parties.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The Court must consider the best interests of the child as the paramount consideration.[6]
[6] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [7]
[7] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children.[8]
[8] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[9]
[9] Subsection 60CC(2)
The Court must also take into account those of the “additional considerations” that are relevant.[10]
[10] Subsection 60CC(3)
The law in relation to relocation of children is very fully set out by Boland J in Morgan & Miles.[11] I do not propose to restate all of what her Honour said. However, I think that it is worth restating what she said at paragraphs 80 and 81:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
[11] Morgan & Miles (2007) FLC 93-343
remain valid.
What the legislation now requires is:
- consideration 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 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 then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
In a 2008 paper, Professor Patrick Parkinson said:[12]
The best interests of the child remain, of course, paramount, but they are not at large. The decision about the future of a child in a parenting matter is not a personal decision of the judge but a judicial decision. There is not a hierarchy of considerations, paramount, primary and additional. Rather, the assessment of the best interests of the child in a given case relies upon a reasoned assessment of the primary and additional considerations in s.60CC, and the other considerations such as in s.65DAA, taking into account the objects and principles of Part VII of the Act.
[12] Prof. P Parkinson, “Relocation in the Era of Shared Parental Responsibility”, May 2008, Sound Education in Family Law
In my view, that is a succinct statement of the law in relation to relocation applications.
It is clear that the Court is not bound by either of the parents’ proposals. See Bolitho and Cohen.[13]
[13] Bolitho and Cohen (2005) FLC 93-224
Comment
Before I turn to the considerations in section 60CC of the Act, I consider it pertinent to comment that Judges in Family Law matters do not often get opportunities to congratulate parents on the quality of their parenting. However, this is one of those rare occasions when both parents deserve to be congratulated.
In the first Family Report, the Family Consultant said:
[The father] and [the mother] are competent and loving parents. Despite their own emotionally painful adjustments to the marital separation, they have managed to maintain quite effective parental communication and mutual respect. [They] each have been able to focus upon the children’s needs and support their children’s relationships with the other parent. [They] probably will continue to co-parent effectively. Parents with these strong qualities often manage their arrangements without family law proceedings.[14]
[14] See paragraph 31 of the first Family Report.
Nothing in the subsequent Family Reports or the evidence causes me to believe there has been any diminution in the strong parenting qualities of these parents. Indeed, the Family Consultant stated there was no dispute that they are good parents in both subsequent reports.[15]
[15] See paragraph 3 of the second Family Report and paragraph 4 of the third Family Report.
In addition, I note that it is reasonably rare in Family Law matters to hear no evidence at all about violence or about excessive drug and alcohol consumption. This is a case in which there was no such evidence and the parties are to be commended for that also.
Primary considerations
The benefit to the children of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered in many cases by the Family Court of Australia and this Court. For example, in Mazorski and Albright,[16] Brown J said this at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[16] Mazorski and Albright (2007) 37 Fam LR 518
In Champness & Hanson,[17] the Full Court said:
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
[17] Champness & Hanson (2009) FLC 93-407 (Thackray, O’Ryan & Benjamin JJ at 83,513)
In McCall & Clark,[18] Bryant CJ, Faulks DCJ and Boland J said this:
[18] McCall & Clark (2009) FLC 93-405
117. Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage [to] a child.
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
In M & S,[19] Dessau J said at paragraph 45:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[19] M & S (2007) FLC 93-313
In the relocation case of Godfrey & Sanders,[20] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the 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. [21]
[20] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
[21] At paragraph 33
He went on to say:
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. [22]
[22] At paragraph 36
Although there has been some criticism of those last comments by Kay J in Godfrey & Sanders by a well-respected former judge of the Family Court of Australia,[23] I note that their Honours of the Full Court of the Family Court of Australia have three times referred to those comments by Kay J without apparent criticism.[24]
[23] See the article by Prof. Richard Chisholm: “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006” in (2008) 22 Australian Journal of Family Law, commencing at page 193.
[24] See Moose & Moose (2008) FLC 93-375 at paragraph 70 (May, Boland and O'Reilly JJ), McCall & Clark (2009) FLC 93-405 at paragraph 116 (Bryant CJ, Faulks DCJ and Boland J) and Sigley & Evor [2011] FamCAFC 22 at paragraph 135 (O’Ryan, Strickland and Benjamin JJ)
The Oxford Dictionary of English[25] defines “meaningful” as “serious, important or worthwhile”, and I consider that “important” and “worthwhile” are both synonymous with “meaningful” for the purposes of section 60CC(2).
[25] 2nd Edition revised
The strong evidence is that children have loving relationships with both parents and I am satisfied that, if the mother moves with the children to Y, their relationship with the father will continue to be important and worthwhile notwithstanding the consequent reduction in their time with him. Similarly, I am satisfied that the children’s relationships with the mother would continue to be important and worthwhile if she was to move to Y without them. I am therefore confident that the children will maintain their meaningful relationships with the absent parent in either situation.
Having said that, however, the benefit to a child of having a meaningful relationship with both parents is only one of a number of factors to be considered under section 60CC and nowhere in the Act does it state or imply that having a meaningful relationship with both parents “trumps” all the other considerations under section 60CC. It is a matter of the weight to be attributed to each relevant factor in the specific circumstances of the particular case. I repeat that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”. (However, I note that section 60CC has been amended since Kay J made those comments.[26] Subsection 60CC(2A) now states that: “In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)” but that does not apply here because these proceedings were commenced before 7 June 2012 and, in any event, there is no suggestion that these children require protection from harm from abuse, neglect or family violence.)
[26] With effect from 7 June 2012
The need to protect the children from harm from abuse, neglect or family violence
As mentioned above, there is no suggestion that these children require protection from harm from abuse, neglect or family violence, so this is not a factor of concern. In the second Family Report, the Family Consultant made this observation, which I accept as being valid:
Allegations of family violence and child protection issues have not been raised. While there is emotional tension and disagreement about the children's arrangements between [the father] and [the mother], A and B have not been exposed to overt conflict between their parents. There is no dispute that [the father] and [the mother] are generally good parents. They have been able to communicate adequately about making flexible arrangements for the children.
The Family Consultant confirmed those observations and views in the third Family Report.[27]
Relevant additional considerations
[27] See paragraph 4.
The children’s views
In the second Family Report, the Family Consultant stated this in relation to A’s views:[28]
A announced and repeated that she is very keen to live in Y. She wants to change school because of problems with other children and she liked the idea that her father would visit her often and take her to dine in a Chinese restaurant. A understood that her mother wants to relocate to Y as there would be more people to help her care for the children. She spoke positively about [the mother]’s partner and his family in Y. She said she does not like the long car trips to Y, but she hastily added that she has become accustomed to the long travel.
[28] Second Family Report at paragraph 23
The Court file reveals that those views were expressed in her discussions with the Family Consultant in mid-December 2012. In relation to B’s views at that time, the Family Consultant also reported that: “B was aware of the prospect of relocating to Y. He said he would not like this because the car trip is too long.” [29]
[29] Second Family Report at paragraph 21
A’s views appeared to have changed significantly by the time she attended the interviews for the third Family Report in October 2013. The Family Consultant reported as follows:[30]
A (aged 10 years) understood the purpose of the interview. She expressed clear and articulate views. A is an intelligent child and despite her age and overt emotional immaturity at times, she impressed in her interview as having formed thoughtful views about where she wants to live. A stated that she does not want to relocate to Y because she likes living in X with her friends and she described being “really close to Nan and Pop” (her paternal grandparents). She said she would “feel really sad” if she has to live in Y.
When asked about her likely reaction if the Judge decides upon this outcome, A said “I’ll run crying to my room and I won’t go. I won’t get in the car because I’m stronger than my mum and I can lift her up and she’d try to make me (go)”. She said she suspected that B does not want to live in Y either. She claimed that [the mother] “tried to bribe” B and herself, although in different ways, regarding Y. Her description was consistent with what [the father] said the children had told him about this subject. A stated that she has told her mother that she does not want to relocate with her to Y. She said her mother got “upset and all teary”. She said she had also told her father.
A was asked about her relationships with her maternal grandmother and aunt who live in the Y area. While A was positive about these family relationships it did not seem that she felt sufficient affinity to induce her towards wanting to live in Y. A said that the envisaged lifestyle in Y would be “good” but she repeated that she does not want to live there. She said that she likes [the mother’s partner] and was aware that her mother planned to marry him. She said that that would be all right but she does not really want to share her home life with siblings although [the mother’s partner]’s son [named] is “nice”. A volunteered that her mother had told her and her brother that she, [the mother], would move to Y anyway, if the Judge ordered to the contrary; and that they would see her every second weekend. A said that it would be “really sad” if she only saw either parent on alternate weekends.
[30] Third Family Report at paragraphs 32 to 34
The Family Consultant reported as follows in relation to B:[31]
B (almost 9 years) clearly was ready to be interviewed although when asked he said he felt “nervous … because [he did not] know who to live with”. He added that he worried about the other parent being “sad”. It was evident that B felt emotionally burdened by his understanding that he needs to choose between his parents regarding the relocation and he has felt emotionally torn.
B clearly stated and repeated that he “really” wants to retain the current arrangements in which he enjoys a lot of time with each parent. He was aware that his mother wants him to live with her in Y. He expressed the understanding that his mother wants to live with [the mother’s partner] in Y; and that his father wants him to remain in X. He said that he “will miss whoever” he does not live with. B stated that he would “feel heartbroken” if the Judge decides that he is to live mostly with one or the other parent. B volunteered that he does not “really care about the travel” as long as he can see both parents.
B evidently is aware of his mother’s medical treatment and although this issue would have been distressing for B, the impression was gained that at this stage B feels reassured about his mother’s future health. B said that living mostly with his father recently has been “pretty good”. He obviously enjoys living with his father and has lots to do at his father’s home. He described school as “good” and he enjoys his friendships. The impression was gained that B has felt emotionally secure with and well looked after by his father and has adjusted to his mother’s absence during the school week.
B had nothing negative to say about the lifestyle in Y where he has spent time with his mother and with [the mother’s partner]. He evidently likes and admires [the mother’s partner] and would be happy for his mother and [the mother’s partner] to live together.
[31] Third Family Report at paragraphs 28 to 31
I have quoted at some length from the third Family Report because it shows to me that neither child has a positive view about moving to Y. Indeed, A’s view is quite strongly negative.
It is important to remember that this consideration is expressed as “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”. That incorporates some of the wisdom from earlier decisions of the Family Court. For example, in H v W the Full Court of the Family Court considered the question of the wishes of two children who were aged eight and seven at the time of trial.[32] Fogarty and Kay JJ, in a joint judgment said;
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.[33]
[32] H v W (1995) FLC 92-598
[33] Page 81,944
Their Honours approved of the comments of Hannon J in Doyle and Doyle, [34] where he had said:
If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.[35]
[34] Doyle and Doyle (1992) FLC 92-286
[35] Page 79,128
In a separate judgment in H v W, Baker J had said:
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.[36]
[36] Page 81,967
In his closing submissions, counsel for the mother said that the wishes of the children should not be given great weight because they are only nine and ten years old and because the views of A had changed so dramatically between the second and third Family Reports. I do not consider that I should dismiss their views quite so easily. In this regard, the Family Consultant said this about the weight that can be now attached to their views:[37]
A and B expressed clear views about their parent’s proposals. In general developmental terms, A and B are of an age and level of maturity where their expressed views might not be considered critical to the decision about where they will live. This was more so 12 months ago when A and B first expressed views about their mother’s desire to relocate them to Y. In the 12 months since then, they of course have gained psychological maturity; they have become more familiar with their potential lifestyle in Y including in the home of [the mother’s partner]; their awareness of the consequential changes to their current lifestyle in X including with their father and schooling will have increased; and most recently they have lived for a significant period of living primarily with their father and spent less time with their mother. Accordingly their views expressed to the family consultant most recently could be given greater weighting than previously as their views have a more substantial basis.
[37] Third Family Report at paragraph 39
It is clear that neither child wants any significant change from the current arrangement. Unfortunately for them, a number of factors are combining to bring about significant change in their lives. Those factors are:
·the mother has a very understandable desire to be with her partner, whom she loves and plans to marry;
·her partner has a business, which I accept for practical purposes would be virtually impossible to move to X; and
·the father is involved in a business and I accept that it is unrealistic for him to relocate to Y.
I will refer below to the effects of changes in the children’s lives.
The children’s relationships with the parents and other people
It is very clear to me that children have warm and loving relationships with both parents. I find that is why B said that he would “feel heartbroken” if the Judge decides that he is to live mostly with one parent or the other. It is also why A said that she would be “really sad” if she only saw either parent on alternate weekends. [38]
[38] See the third Family Report at paragraphs 29 and 34.
Both children also have loving relationships with their extended families on both sides, particularly with their grandparents. In my view, that is most pleasing and I am certainly not alone in that view. For example, Treyvaud J said this in Bright and Bright v Bright and Mackley,[39]
Kay J, in a decision to which I was referred, of Stevens and Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[39] Bright and Bright v Bright and Mackley (1995) FLC 92-570 at page 81,658
It is clear to me from the Family Reports that both children have a good relationship with the mother’s partner. The Family Consultant reported that B was overheard expressing his pleasure at the mother’s partner being present at the Family Report interviews and she reported that A happily engaged with the mother’s partner. The Family Consultant also said that both children obviously enjoyed his company.
The father has been in a relationship with a woman since 2009, but they do not live together. I accept the father’s evidence that the children get on well with her but I also accept his evidence that his children are his priority and his relationship with that woman comes second. In those circumstances, it is of little significance that she was not a witness in this matter.
The willingness and ability of the parents to facilitate and encourage the children’s relationship with the other parent
I do not have any real concerns in relation to this consideration, because it is quite clear that both parties have encouraged the children’s relationship with the other party in the past. There is nothing in the evidence to suggest that will change. Indeed, the Family Consultant’s clear evidence is that the parties have been able to communicate well in order to make flexible arrangements for the children despite any emotional tension or disagreement between themselves.[40] That certainly bodes well for the future for these children.
[40] See paragraph 3 of the second Family Report and paragraph 4 of the third Family Report.
The capacity of the parents to provide for the children’s needs
This consideration specifically refers to the capacity to provide “for the needs of the child, including emotional and intellectual needs”.
I have no doubt that the parents can each provide for the children’s physical needs. Both parents will continue in their employment. I also have no concerns about them providing for the children’s intellectual needs. However, I do have some slight concern about the mother’s attitude to A’s behaviour, which may reflect a failure to fully understand A’s emotional needs.
In my opinion, an example of this is the mother’s view that A is “somewhat motivated by self-centredness, in that she is influenced by getting her own way, getting presents and not being controlled or disciplined by her father”.[41] She went on to say:
Whilst I love A dearly and wish her to be continuing in my primary care I do recognise that she has a self-centred trait at this stage in her life and wants to get her own way.[42]
[41] See paragraph 91 of her trial affidavit.
[42] See paragraph 92.
One of the examples of A’s behaviour quoted by the mother related to an occasion when the father delivered the children to the mother’s home on B’s birthday.[43] A clearly wanted to spend another night with her father and it is accepted by both parties that A and her father sat in his car outside the mother’s home for a lengthy period. It is the mother’s evidence that after some time she went over to the father and said to him: “Can’t you just drop her off and leave without creating all this nonsense?” and the father responded that he was “trying to”. After approximately 45 minutes A entered her mother’s home and, according to the mother, “everything was fine”.
[43] See paragraph 91.3
Unfortunately, the mother then chose to penalise A by preventing her from going to a swimming lesson with her father the following day as “a consequence for her bad behaviour”. The mother also warned A the next day “that if she carried on in front of her father there would be another consequence”.
What concerns me is that the mother appeared not to appreciate A’s emotional state at the time (and she also did not appear to give the father any credit for persuading A to stay for her brother’s birthday party). However, it is important to remember that B’s birthday was in November and the mother was going through very difficult and distressing medical difficulties at that time, which would also have been difficult and distressing for the whole family.
Having said that, however, the mother does deserve a lot of credit for putting the children’s needs above her own. In this regard, I need only to quote her own words from her trial affidavit:
88. If the decision is that I cannot relocate the children I would find this very distressing. However, I feel that I absolutely must go to Y myself.
89. In that event I consider that in the children’s best interest they should have a primary carer and home base, and that would have to be [the father].
90. I believe that travelling to and from Y for school, whilst I would be prepared to do it so they could live with me, would be too disruptive and tiring for the children.
The father also deserves credit for putting the needs of the children above his own. In this regard, it is pleasing to see that his first preference is for the children to spend equal time with both parents with whom they have meaningful relationships. It is only if that is not possible that he puts forward a “Plan B” for the children to live predominantly with him.
The attitudes of the parents to the children and parental responsibilities
In some respects there is some overlapping between this factor and the factor referred to immediately above. However, there is no doubt in my mind that both the mother and the father are good parents who have good attitudes to their children and to their responsibilities as parents.
The likely effect of any change in the children’s circumstances
As I said above, neither child wants any real changes to the current arrangement whereby they see each parent on a regular basis. However, factors beyond their control are combining to bring about significant changes in their lives.
It is perfectly clear that both children will be saddened by seeing less of either one of their parents. However, I have confidence that both parents will do all they can to minimise that sadness and to help them adjust to the new situation.
I also note that the children are settled in their current school and are doing well. A change of school usually cause some stress to children, but that is a normal fact of life and I have no reason to believe that these children would not cope with such a change if it was to occur.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
Both parents are prepared for any additional expense or time involved in travelling between X in Y, so this is not of concern.
The maturity, sex, lifestyle and background of the children
This consideration is addressed to some degree in what I have said above, so I do not need to say anything further here.
Any family violence and family violence orders
As stated, this consideration is not relevant in relation to this matter.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the children
In my view, the father is to be commended for firstly seeking orders that will permit equal time if the parties continue living in relatively close proximity. I therefore propose to make such orders, but also make orders that will take account of the fact that it is more likely that they will not be living in relatively close proximity. Hopefully, this will obviate any need for further litigation (which can only be in the children’s best interests).
Discussion
The parties agree that they should share parental responsibility equally and nothing in the evidence suggests otherwise.
If a parenting order is to provide that the parents are to have equal shared parental responsibility, the Court must consider whether spending equal time with each of the parents would be in the best interests of the children and is reasonably practicable. However, as I have stated above, the High Court made it clear in MRR v GR that Courts should not consider making orders for equal time if the results will not be “reasonably practicable”.
In H and H, [44] Federal Magistrate Ryan (as she then was)[45] gave a very useful summary of the factors that the Court should consider in relation to “equal time”. Some of those factors she noted that are pertinent here are:
[44] H and H (2003) FLC 93-168
[45] Now Justice Ryan of the Family Court of Australia
· The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes? and
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem? [46]
[46] See paragraph 47 of H and H
In this matter, I find that it is not reasonably practicable for the children to spend equal time in homes that are over an hour apart. In any event, both parents appear to accept that to be the case.
As stated above, I am persuaded that if the parents live in relatively close proximity, they should spend equal time with these two good parents. However, it seems more likely that the mother will move to live with her partner and he is unlikely to move his business to the X area. Similarly, it is unlikely that the father will move to the Y area. Consequently, I need to decide with whom the children should live predominantly if their parents are not going to be living in relatively close proximity and that is essentially the difficulty to which Judge Brown was referring in P & P (as mentioned at paragraph 1 above).
I have also mentioned above that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”. However, that does not mean that a single factor or consideration cannot become determinative of a case. The exercise that the Court is required to undertake involves weighing up all relevant considerations so it must logically follow that there can be cases where one of the relevant considerations will “tip the scales” one way or the other.
In my view, this is such a case and the consideration that tips the scales in favour of the children living predominantly with their father is to be found under the heading “The children’s views” above. I do not need to repeat what I said there, but I find that it would have a serious detrimental effect upon the children if I was to make orders contrary to their expressed wishes.
I will therefore make orders that are essentially in accordance with those set out in the Case Outline submitted on behalf of the father.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 13 March 2014