Wilson and Wilson
[2008] FMCAfam 767
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILSON & WILSON | [2008] FMCAfam 767 |
| FAMILY LAW – Parenting – children aged 9 and 6 – mother seeks relocation with children to [R] – children primarily attached to mother – mother suffering financial and emotional stress – relocation permitted. |
| Family Law Act 1975 |
| A & A: Relocation Approach (2000) FLC 93-035 AMS & AIF; AIF & AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 KB & TC (2005) FLC 93-224 H & W (1995) FLC 92-598 Morgan & Miles [2007] FLC 93-343 R & R; Children’s Wishes (2000) FLC 93-000 Taylor & Barker [2007] FamCA 1246 U v U (2002) 211 CLR 238 W & R (2006) 35 Fam LR 608 |
| Applicant: | MR WILSON |
| Respondent: | MS WILSON |
| File Number: | SYC 3210 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 4 & 5 June 2008 |
| Date of Last Submission: | 5 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Clifford |
| Solicitors for the Applicant: | Delaney Lawyers |
| Solicitors for the Respondent: | James Mccaffrey & Associates |
ORDERS
The children [B] born in 1999 and [C] born in 2001 live with the mother.
The mother be permitted to live with the children in the [R]/Cairns region in far north Queensland from the end of the 2008 school year.
Until the children leave Sydney in accordance with Order (2) herein, the children spend time with the father as follows:
(i)On the first two weekends of every three week cycle commencing the first weekend after the making of these Orders from Friday afternoon until Sunday afternoon with the father to collect the children from the mother’s residence at 4.30p.m. on the Friday and the mother to collect the children from the father’s residence on the Sunday of that weekend at 5.30p.m;
(ii)From the first Saturday of the October 2008 school holidays until the second Tuesday of those school holidays with changeover to occur as in (i).
Thereafter, the children spend time with the father at any time by agreement, but failing agreement, as follows:
(i)In Queensland school holiday periods at the end of terms 1, and 3 for a period of 10 days from the first Saturday until the second Tuesday;
(ii)In Queensland school holiday periods at the end of term 2, for a period of 7 days from the first to the second Saturday;
(iii)In each Christmas school holiday period for a period of 3 weeks commencing 2 January in years ending in an even number [including 2008/9] and commencing Christmas Eve in years ending in an odd number [including 2009/2010];
(iv)For any weekend, at any time between the end of school Friday and the commencement of school Monday, in the [R]/Cairns region upon the father giving at least 14 days notice to the mother, when, unless otherwise agreed, the father will travel to the region and the children will remain in the vicinity of [R]/Cairns for the weekend;
(v)For a period of 7 days in each school term in the [R]/Cairns region upon the father giving at least 14 days notice to the mother, when the father will transport the children to and from school each weekday;
(vi)The parties share equally the cost of airfares for the children between Sydney and Cairns including the cost of an accompanying adult if required;
(vii)The mother make the travel arrangements for the children and advise the father with as much notice as practicable, but no less than 14 days prior to the commencement of the school holiday period, of details of airline and travel times;
(viii)Each party transport the children to and from the Cairns or Sydney airport.
The children communicate with the father by telephone at least twice each week, being Monday and Thursday evenings between 6 and 8 p.m. unless otherwise agreed, when the father will telephone the children on a landline number provided by the mother to the father within 48 hours of her relocation to [R].
The children communicate with the father on special days when they are not in his care including:
(i)The father’s birthday;
(ii)Ms T’s birthday;
(iii)Each child’s birthday;
(iv)Father’s Day;
(v)Christmas Day; and
(vi)Easter Sunday.
The mother facilitate the children telephoning the father at any reasonable time.
The children communicate with the father by email and/or video cam or any other electronic means at any time and for the purpose of this Order, the mother forthwith upon her arrival in [R] make arrangements to enable such communication at her own expense and advise the father of the details within 14 days of her change of residence to [R].
The children communicate with the mother by telephone and/or electronic means on any special days the children are not in her care including but not limited to:
(i)Each child’s birthday;
(ii)The mother’s birthday;
(iii)Mother’s Day;
(iv)Christmas Day; and
(v)Easter Sunday.
The parties have equal shared parental responsibility for major decisions relating to each child’s welfare.
Each party have responsibility for the day to day care of the children while in that party’s care.
The mother place at least one “4 x 6” framed photograph of the children with their father in a prominent position in her residence and within seven days of her change of residence to [R].
The parties keep each other informed and updated in relation to any medical issues involving the children, including providing each other with the names and full contact details of all medical practitioners attended upon by the children and each party provide his/her authority for the other parent to communicate with all medical practitioners attended upon by the children from time to time.
This order be sufficient authority to provide the father with the children’s school reports, dates for sports days, parent/ teacher nights, concerts and other events and/or any other information from each child’s school and the father be at liberty to attend any and all activities to which parents are invited to attend.
Each party keep the other informed of any and all extracurricular activities engaged in by the children and the father have liberty to attend at all the children’s extracurricular activities at any time.
The mother provide the father with a written report of each child’s progress, health and activities in May and October each year.
The mother ensure the children are given any cards, letters, gifts or other items sent to them by the father or members of the father’s extended family, as soon as any such item is received.
Neither party make derogatory comments about the other party or members of the other party’s family to either child or to any person in the presence or hearing of either child and each party ensure their only comments about the other party or members of the other party’s family in the presence or hearing of either child are positive.
Each party keep the other informed at all times of his/her address, landline and mobile telephone numbers.
Pursuant to section 13C of the Act the parties must within 7 days contact Unifam on 9373 9500 to arrange an appointment as soon as practicable for a post separation parenting assessment.
Each party must attend the assessment and attend counselling or any other programme recommended by Unifam to assist the parties to better communicate in the interests of [B] and [C].
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
With the exception of any application for costs, all outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Wilson & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3210 of 2007
| MR WILSON |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [B] aged 9 years and [C] aged 6 years. The mother wishes to relocate with the children from Sydney to [R], 45 minutes from Cairns in far north Queensland.
The parties separated in September 2003 after a relationship of approximately 8 years, living in separate accommodation from January 2004. The children were then aged 4.5 years and just over 2 years. The children live with the mother in rented premises at [Q], in Sydney’s western suburbs. The mother works three days a week during school hours and is able to care for the children at other times. The children spend alternate weekends and half school holidays with the father who lives with his partner of two years at [U]. The father and his partner, Ms T, have bought the property they are living in, and both have full time employment in Sydney. Ms T’s family live in the eastern suburbs of Sydney. The father and Ms T plan to have a child.
The mother says she wants to leave Sydney mainly for financial reasons though she also says she has never formed a support network in Sydney and is lonely here. She is concerned about the quality of life she can offer the children given the uncertainty of the rental market and the high cost of living in Sydney. She seeks the support of her parents, extended family and friends who live in the Cairns region. Given she can live rent free with her parents in [R], she believes she will be in a much stronger financial and emotional position if she and the children are permitted to move. Ms Jay Manya, psychologist, prepared a family report for the court.
Ms Manya says [1]:
During the interviews it was clear that Ms Wilson is totally unhappy and exhausted with her daily responsibilities in relation to the children. In this light she would certainly receive positive support and much needed relief from her extended family if she lived in Cairns.
[1] Exhibit 1 at paragraph 35
The father wants the children to remain living with the mother in Sydney and for the children to spend two out of three weekends with him during school terms, one weeknight in each three week cycle, as well as half school holidays and other special days. He says a move as proposed by the mother would cause “great trauma” to the children given the strength of the children’s relationship with him.
The father says the parties have always had difficulty communicating. The mother says, “I don’t know how to communicate with him”.
The parties therefore communicate by email about anything of consequence relating to the children. The mother says the parties have spoken more just prior to hearing but she is concerned this communication will not continue beyond this hearing. Each party agrees the children are affected by the level of tension between them.
The parties separated under the one roof in approximately September 2003. The father moved to separate accommodation in close proximity to the mother’s residence from January 2004. The children then spent most weekends with the father. After the father moved to [X] in June 2006 to live with Ms T, the children’s time with the father was reduced to alternate weekends.
There are no current parenting orders.
Each party has strong Queensland connections. The father’s parents live on the Gold Coast. The parties met in Queensland and started living together in January 1995 in a unit owned by the mother in Cairns. They married in Cairns in June 1996 and [B] was born there. The parties bought a home in Cairns and remained living there until 2000. The parties then moved to Townsville when the father joined the Defence Force. The father acknowledged to Ms Manya that the mother never wanted to leave Cairns. When in Townsville, the parties separated for a few weeks when the mother and [B] returned to live with the mother’s parents in Cairns. In 2003 the father joined the Australian Federal Police and went to Canberra for training. During the 6 month training period, the mother lived with her parents in Cairns with the two children. After the father’s graduation in August 2003, the parties moved to Sydney but separated again within a few weeks.
The mother says she reluctantly remained in Sydney at the father’s request for the sake of the children. The parties divorced in November 2005. The mother moved from [Z] to rented accommodation at [Y].
In September 2007, after living there for nearly two years, the mother was told the property was to be sold. She was required to vacate by no later than 19 May 2008. Having looked at over 30 properties, the mother found a house shortly before the deadline. She and the children moved to [Q] on 3 May 2008 on a 6 month lease. The mother says the rental market is very tight and she was under enormous stress fearing she would have nowhere to live with the children.
The mother is 35 years of age, the father 40 years of age. The mother works part-time in customer service for the [omitted] Bank. The father works full time for the Australian Federal Police. He is presently on secondment to the [ommitted] as an investigator. The father lives with his partner, Ms T in a home they have purchased together in [U]. Ms T is a full time General Manager for a recruitment agency.
Legal principles
His Honour Justice Kirby in the High Court decision of AMS & AIF; AIF & AMS (1999) FLC 92-852 said [2]:
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
[2] At paragraph 142
Parenting orders are governed by Part VII of the Family Law Act 1975. Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in section 60CC(2) and the additional matters set out in section 60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 60CC(4A) provides that if the parties have separated, the Court must have particular regard to events that have happened, and circumstances that have existed, since the separation occurred. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children.
The Full Court in A & A: Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases [3]:a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
[3] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
The Full Court in A & A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[4]:
[4] Ibid, pp10-12.
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the section 68F(2) factors (now the section 60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
The High Court in U v U[5] modified the approach in A & A when Gummow and Callinan JJ said:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question… the objective is always to achieve the child’s best interests.
[5] (2002) 211 CLR 238
In KB & TC[6] the Full Court said:
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section 68F(2)factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[6] (2005) FLC 93-224
In the recent decision of Morgan & Miles [7], her Honour Justice Boland examined in detail the impact of the 2006 amendments on relocation cases. Her Honour held that the earlier core principles which must be applied when determining a parenting matter involving relocation remain valid [8]:
·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.
[7] [2007] FLC 93-343
[8] At paragraph 80
The competing proposals
The High Court has held that the court is not confined to the proposals of the parties when deciding a relocation case [9]. At hearing each party sought an order for equal shared parental responsibility. I invited each party’s legal representative to submit as to whether the court should consider options other than those proposed by each party. The father’s counsel said the father was not in a position to move to far north Queensland whether or not the mother was permitted to relocate with the children. Further, counsel told the court the father did not seek an order for the children to live with him in any circumstance. Each party’s legal representative submitted, and I accept, that the only realistic options were those sought by each party:
(a)The mother’s proposal. The children live with the mother in [R]/Cairns and spend as much spend time as practicable with the father in Sydney and [R]/Cairns.
(b)The father’s proposal. The children live with the mother in Sydney and spend regular time with the father on 2 out of 3 weekends, a weeknight 1 week in 3, half school holidays and on special days, or some other spending time arrangement.
[9] AMS & AIF; AIF & AMS (1999) FLC 92-852 and U v U (2002) FLC 93-112
Details of the mother’s proposal. The mother would relocate at the end of the 2008 school year. The children would spend half of each school holiday period with the father and on a weekend in each term if the father travelled to [R]. The mother would facilitate regular telephone and electronic communication. The mother would meet half the airfares for the children. The mother would live rent free in [R], about 45 minutes from Cairns, in her parents’ several acre property, at least in the foreseeable future. The mother’s parents had moved to [R] from Cairns just prior to this hearing. The mother told Ms Manya she would move to independent accommodation when she was properly settled but her parents have agreed to provide her rent free accommodation for as long as she wants it. The mother has a brother and niece in Cairns and a sister who lives with her young family approximately 4 hours from Cairns. The mother’s best friend of 15 years has recently moved from Sydney to Cairns. The children would attend [V] Primary School, about 8 minutes by bus from the [R] property. There is a school bus which goes directly from the [R] property to the school. The mother adduces no evidence in relation to the school. The mother would seek work in customer service at the [omitted] Bank or an alternate bank at [R]. The mother says:
[R] provides a more relaxed lifestyle and a safer environment for the children to grow up. In [R] the children would be able to participate in sporting activities that they are currently not able to do. They would also be able to have contact with both of the extended families.
I would have a support network for myself and the children in Queensland where my extended family are living and I would have much cheaper accommodation costs as well as cheaper everyday costs.
The mother says the children have travelled with her by plane to and from Cairns and she believes they would manage the 3 hour trip from Cairns to Sydney unaccompanied. The mother says if living in [R] rent free she could save money. She would be able to work longer hours with her parents’ help caring for the children, without incurring fees for care outside school hours. The mother says she would move to independent accommodation in either [R] and Cairns only when she was on her feet financially.
The mother would have the security and support of her extended family and would have the security of living in the region in which she has friends, and with which she is most familiar.
Details of the father’s proposal. The children would spend two out of three weekends with the father during school terms, an additional night in the third week of each 3 week cycle, as well as half school holidays and other special days. The father would remain living in their home at [U] with Ms T, though the father says he and Ms T have very recently discussed the possibility of moving to [S] or [Z] so they would be closer to the mother’s residence. The father would remain in his present position, on secondment from the Australian Federal Police. The father says his working hours make it difficult for him to spend regular time with the children during the week.
The mother would continue to live in [Q] in rented accommodation during the period of her current lease. She would then enter into a further lease of that property or if necessary, look for rental accommodation elsewhere. The mother would continue to work part-time at the [omitted] Bank, because the Bank will not give her additional hours and she would be only marginally better off financially if she worked full time, when taking account of the child care fees outside school hours. The children would continue to attend [T] Public School at [Z] provided that the mother lived in premises not too distant from the school.
The mother would continue to live on her part-time salary from the Bank, Government benefits, and child support from the father. Currently, the mother’s unchallenged evidence is that she lives on a weekly income of $881 comprising her net salary of $264 [10], family assistance of $102 [11], parenting payment of $261 [12] and child support from the father. Neither party adduced clear evidence in relation to the father’s child support payment history since separation. The father says he is currently paying $1,065 a month, at least until 1 July 2008, and this is supported by the Agency documents at Exhibit 6. The father says he paid arrears of $4,200 two days prior to hearing. An Agency document dated 6 May 2008 states that the annual child support payable by the father for the period 1 July 2008 until 31 December 2008 is $7,470 equivalent to $143.16 a week.[13] Another Agency document dated 6 May 2008 states that the father’s liability for child support in the first two months of 2009 is $95.71 a week. [14] Assuming the accuracy of these figures, the father’s child support contribution will be lower from 1 July 2008 and will reduce further from 1 January 2009.
[10] Exhibit 3
[11] Exhibit 5
[12] Exhibit 4
[13] Exhibit 6
[14] Exhibit 6
The mother is paying $340 a week in rent and when groceries, health insurance, utilities, petrol, school fees, credit card payments, tollways and car loan payments are included, she has expenses of $734 a week. This does not include her counselling fees of $30 a fortnight, entertainment expenses, extra curricular activities, pharmacy, gifts and other necessary expenses. The mother says she has insufficient money to take the children on outings or to enable the children to continue their extracurricular activities which they enjoy. She has ongoing concerns about her continuing capacity to meet rental payments. Recently she says she has had to pay school fees, ballet fees, outstanding accounts from the [Y] property, internet and credit card accounts. The mother has calculated that she receives income of only $20 a week more than if she did not work at all.
Evaluation of each proposal against the children’s best interests having regard to the principles underlying the objects of the Act.
The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·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
·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.
As already noted, in deciding the arrangements that will promote the best interests of a particular child, the Court must consider the matters set out in section 60CC (2) (3) and (4) of the Act as far as relevant in the circumstances of each case. The primary considerations I must consider are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The benefit to the children of having a meaningful relationship with both parents.
The law provides that the benefit to the children of having a meaningful relationship with both parents is a primary consideration.
Each party acknowledges the importance of each child’s relationship with the other party. Each acknowledges the strength of those relationships. Ms Manya reports [B] and [C] enjoying a good relationship with both the mother and the father. However, they view their mother as their primary carer.
The father wants the children to continue to live primarily with mother, recognising the children’s primary attachment to her. When the parties separated in September 2003, it is common ground that the children frequently spent time with the father, while he lived close by. That arrangement only changed when the father moved to [X], much further away from the mother. Currently the children are spending alternate weekends with him.
I find [B] and [C] presently enjoy a close and loving relationship with each party.
In Ms Manya’s view, the children’s close relationship with the father could be maintained if the mother were permitted to relocate, although there would be a difficult adjustment period, and the children would miss spending frequent time with the father and would miss the involvement of their father in their school lives. In the event the children live in [R], they will spend time with the father in each school holiday period and for other periods in each term if the father travels to [R]. The children will have regular telephone communication with the father and other communication by videocam and email. This is in contrast to the children spending alternate weekends and half school holidays with the father as presently occurs or two out of three weekends as proposed if the children remain in Sydney. Ms T says she will assist with transport costs in the event the children are in [R].
I am satisfied that the children will continue to benefit from a meaningful relationship with the mother and the father whether they live in Sydney or in [R].
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This factor is not relevant in this case.
Each child’s expressed views and the weight those views should be given.
[B] is 9 years of age. He made clear to Ms Manya that he wanted his parents to live together. He says he is happy to live in Sydney or Cairns, but does not wish to move away from his father and wants time with his father on a regular basis. However, if his mother relocates to Cairns he wants to go with her. Ms Manya does not report on [C]’s expressed views.
The father says [B] often tells him how much he misses him and how he wants to spend more time with him. The mother says that every now and then [B] says, “I don’t want to go to Cairns.” The father says [C] has also indicated she wants more time with Ms T and him.
The Full Court in H & W (1995) FLC 92-598 at 81,947-8 and in R & R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant…
In Ms Manya’s view, which I accept, the children would like more time with the father than they are having now. She says [B] is sensitive to the issues between the parties and has been behaving aggressively and his concentration is poor. Ms Manya says [B] knows his mother is unhappy. [C] is demanding a lot of attention. Neither child in
Ms Manya’s view is happy and settled.
I give some weight to [B]’s expressed views and to Ms Manya’s opinion that both children would like more time with the father which favours the father’s proposal.
The nature of the relationships between the children and each parent and the children and other persons.
I accept Ms Manya’s evidence when she reports, “[B] shared that he was much attached to his mother. But he missed his father’s presence in his life and at times he was very angry about the separation of his parents.” Ms Manya observed [B] to relate well with both his parents stating, “He enjoyed attention and affection from both parents.”
I accept that on the mother’s proposal, [B] will miss his father. [C] impressed Ms Manya as “emotionally very close to her mother” but to have a good relationship with the father.
The father says and I accept, that the children have a happy relationship with Ms T, enjoying picnics, ice-skating, cooking and other activities with her. Ms Manya observed the children interacting warmly with
Ms T.
The father says the children have a good relationship with his parents who travel to Sydney from their home on the Gold Coast 2-3 times a year to spend time with the children. Each party says the children have a close relationship with the maternal grandmother. Ms Manya reports [B] telling her that he enjoys a good relationship with his maternal grandparents. I accept that the children love their grandparents.
Given the strength of the relationship each child has with the father, on balance, I find this factor favours the father’s proposal.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother told Ms Manya she had always made it clear to the father that if their relationship failed, she would return to Cairns to live.
She nevertheless has remained living in Sydney for the four and a half years since the parties separated thereby ensuring the children spend time with the father. She has also left the children with the father’s parents when the father has been absent from Sydney. The mother acknowledges that the father is a “good father” and was sympathetic to his position if she were permitted to relocate with the children.
The mother told Ms Manya she would never hinder the relationship between the children and the father. In fact, she agreed to the father’s proposal to increase his weekend time with the children if the children were not permitted to relocate, even though she describes her weekends as lonely when the children are not with her. The mother did not impress Ms Manya as a parent who wished to block the children from enjoying a meaningful relationship with their father. She says:
Life in Sydney has lost its meaning for her and she simply wishes to return home. [The mother] in fact seemed quite ambivalent about her move whilst considering the children’s need to have a continued relationship with their father. She assured that she would allow the children to spend time with their father during each school holiday period provided the father shares the children’s travel expenses if they relocated to Cairns.
Although the father complains that the children did not receive his emails when staying in Cairns early this year, he otherwise makes no complaint about the mother’s attitude to the children spending time with him since their separation nearly 5 years ago. It is the mother who complains that the father has not always made himself available to spend time with the children when she has offered him the opportunity to do so. It is common ground the father did not spend holiday time with the children in April/May this year, instead travelling with his partner to the United States in May.
I am impressed by the four year history of substantial cooperation between the parties in relation to post-separation parenting arrangements. Until these proceedings were started concerning the relocation question, neither party had sought court intervention.
The children spent regular and frequent time with the father from the time of separation in September 2003 until June 2006 when the father decided to move a significant distance from the mother’s home to live with his partner at [X]. Not surprisingly, this decision led to a reduction in the time the children spent with the father. On the evidence before me, I am satisfied each party has supported the children’s relationship with the other, recognising the importance of those relationships to the children. I agree with Ms Manya that there is no evidence to suggest the mother will not continue to promote the children’s relationship with the father, whether she is living in Sydney or in [R]. I am not persuaded this factor favours either party’s proposal.
The likely effect of any changes in the children’s circumstances, including the likely effect on them of any separation from a parent or any other person with whom they have been living.
The flight from Sydney to Cairns is approximately three hours. [R] is a further 45 minutes from Cairns. On the mother’s proposal, the children will spend less time with their father. They are unlikely to spend more than one weekend during school terms with the father as well as time in school holidays. They are currently spending approximately 4-5 weekends each school term with the father as well as half school holidays. On the father’s proposal the children will spend approximately 6 weekends each term and half school holidays with the father. The father will be at liberty to spend time with the children on other special days. The father’s proposal favours the children’s best interests on this issue.
If in [R], the children must change schools. If in Sydney, neither party proposes a change of school although it is not certain whether the mother will continue to live close enough to the children’s present school for them to remain there in the longer term. The children have been at the same school since they started, [B] over 4 years ago, and [C] 18 months ago. On the father’s proposal, their present school arrangements would not change. On the mother’s proposal, the children must make new friends and adjust to a new living environment with their maternal grandparents.
On the father’s proposal, given the present financial and emotional strain on the mother, the children will be required to adjust to the mother working either full time or close to full time. They will be required to attend before and after school care on most school days. Although the father proposes spending one afternoon on a week day in each 3 week cycle, with the children, he does not otherwise propose assisting the mother with her caring responsibilities to allow her to establish herself in full time employment. I find it likely the children would find a change in their mother’s working arrangements which required them to attend before and after school care on most days, a significant and difficult adjustment which may impact adversely on the children’s happiness, at least in the shorter term. The mother says she wishes to be available to the children outside school hours rather than work full time. She also believes, when the consequent reduction in Government benefits is taken into account, any increase in her income would make minimal difference to her present circumstances.
On the father’s proposal, he would make no changes to his present employment or living situation. He would continue to live in his home in [U] with Ms T and continue to work full time for the Australian Federal Police.
The authorities make clear that the Court must take into account the welfare of the resident parent which is important to the welfare of the children. Ms Manya believes if the mother continues to suffer emotional and financial strain, the children will be adversely affected. I am persuaded on a balancing of my findings under this factor, the mother’s proposal favours the children’s best interests and I give it considerable weight.
The practical difficulty and expense of the children spending time with and communicating with a parent.
On the mother’s proposal, the father says the cost of him travelling to Cairns alone for a weekend with the children would be a minimum of $800. If Ms T accompanied him it would be $1200, without the costs of accommodation. The father provides no independent evidence as to the cost of airfares nor as to whether the airfares would be less if he were able to select the dates of travel well in advance. However, the father believes the cost of airfares and accommodation would significantly limit his opportunities to spend time with the children outside school holiday periods. While I accept there would be a limit on the number of times the father could travel to [R] in each school term, I am not persuaded the father could not manage at least one weekend each term. Ms T tells the court she would assist with the cost of airfares if the children were living in [R]. Ms T says she holds an executive position in a recruitment company, owns a property at [X] in addition to her share in the property at [U]. I accept Ms T’s evidence that she would be in a position to assist with expenses to enable the father to travel to [R]. The father earns a salary in excess of $80,000 a year. According to the Child Support Agency documents, his child support liability will soon, if it has not done so already, significantly reduce. While I accept practical difficulties exist, I am not persuaded they are insurmountable.
On the father’s proposal, each party bears the petrol costs of transport between households for changeovers. Otherwise the issues of practical difficulty and expense do not arise on the father’s proposal.
I give some weight to this factor.
The capacity of each parent to provide for the children’s needs, including emotional and intellectual needs.
There is no dispute that each party is a committed, capable and loving parent. The mother is involved in the children’s school and apart from some behavioural issues, the children are performing reasonably well academically. [15]
[15] Exhibit 2
The capacity issue relates to the mother’s poor financial position which prevents her providing for the proper needs of the children. The mother says she cannot afford to continue meeting the fees for [C]’s ballet and [B]’s karate and cannot afford to pay the fees and expenses associated with [B] playing soccer, which he would enjoy. The mother says she can rarely afford to take the children on holidays and outings.
Her recent holiday to the Gold Coast cost a total of $600 including airfares. The mother says she has depended on her mother to assist in hers and the children’s basic financial support.
The mother says her child support payments have varied and she has no certainty in her child support income. As at May 2008, the father was in arrears of $3,385.00, and she has needed her family’s financial support during the time she has been in Sydney. She says they have bought clothing for the children, paid household bills and helped with school fees. The mother says that because she has almost no support network in Sydney, her mother has flown to Sydney when the mother has needed support from time to time.
The mother is struggling emotionally with life in Sydney. She has very few friends on whom she can rely and although she has recently started playing soccer on Sundays, she says her weekends without the children are for the most part spent alone. She reads, does the housework and does the shopping.
The mother believes her capacity to care for the children day to day is impaired by her lack of financial means and her lack of emotional support. She says that with only part-time employment she cannot provide adequately for the children. If she works full time she will need to meet the costs of before and after school care as she has no-one to assist her with the children’s care. The mother is extremely concerned about the uncertainty of her accommodation. Ms Manya reports [16]:
At the time of the report interviews the mother seemed to feel overwhelmed because she was unable to find decent accommodation for the children in an area close to the children’s school. She felt that living in rented homes in Sydney made her children’s lives quite unstable and transitory as she had to move as demanded by the house owners. She felt all alone and helpless being away from all her support network.
[16] Exhibit 1 at paragraph 21
Ms Manya observed at interview[17]:
Ms Wilson tried to contain her daughter’s negative behaviour as best she could. However it was clear that the children were tired, hungry and the mother was drained with spent emotions by the end of the interview process which probably reflected her current lifestyle.
[17] Exhibit 1 at paragraph 30
The father says the children enjoy a range of activities when with him including swims, walks, picnics, visits with friends and their families and festivals around Sydney.
I am satisfied this factor favours the mother’s proposal.
The children’s maturity, sex, lifestyle and background.
[B] is 9 years old and [C] 6 years old. The mother told Ms Manya that [B] might suffer from ADHD as he was distracted at school, at times hyperactive and had a poor concentration span. [B] has not been diagnosed with ADHD. The parents described [B] to Ms Manya “as a smart, headstrong and at times quite a handful child particularly when in the care of his mother.” The father says that the mother has phoned to have him speak to [B] when she is finding [B] difficult to manage.
I am satisfied the mother is at times finding [B]’s behaviour challenging. I am satisfied this situation continues despite the father living in the same city with her and the children. On the father’s proposal, I am satisfied that little would change for the benefit of [B].
I find the mother’s proposal which would give her more support, better addresses the issues which arise under this factor.
The attitude each parent has demonstrated to the responsibilities of being a parent.
Each parent has been and continues to be a devoted, caring and committed parent to [B] and [C]. The mother has been a constant in each child’s life and according to Ms Manya each child needs and wants the mother to continue in that role. The mother has encouraged and assisted in the development of the strong relationship between the children and the father, because she regards this relationship as important to them. The father, for his part, has remained consistently and actively involved in the children’s lives.
Each party complains to some extent about the other.
The mother claims the father has been unreliable in relation to time spent with the children, at times cancelling arranged weekends and at times being unavailable during planned holiday periods. The mother says the father has been away on holidays, including overseas with his partner, when the children could otherwise have spent time with him. The mother believes that the father has at times, chosen to put his own desires ahead of the needs of the children.
The mother claims the father has been unreliable in relation to payment of child support and she has been unable to rely on a fixed child support income. The mother told Ms Manya that if she received regular and reliable monetary support from the father, she would make an effort to stay in Sydney “in spite of being personally unhappy about it.” [18] There is no dispute that the father owed $4,200 in arrears until 2 days before hearing.
[18] Exhibit 1 at paragraph 22
For his part, the father claims the mother unreasonably reduced the children’s weekend time with him when he moved from a home located near the mother and children, to [X]. The father claims the mother is obsessed unreasonably with financial issues, and, without providing examples, claims the mother has been unwilling to accept suggestions he has made to help her. The father, at hearing, was unable to suggest a way he might relieve the mother of some of the stresses she was experiencing. He did disclose that he and Ms T had very recently discussed the possibility of moving to [S] or [Z] to be closer to the children’s school and the mother, and to renting their [U] property if the mother and the children were to remain in Sydney.
I am critical of the father’s failure to recognise the mother’s need to have certainty as to her child support income and to have provided her with that certainty well before hearing. Although at hearing, his counsel indicated he might be prepared to enter into an agreement as to a fixed child support payment, at least in the short term, I formed the view the father was not prepared to change his circumstances in a way which would be likely to substantially improve the mother’s present circumstances. I find the father’s child support payments will reduce, not increase, and the mother’s financial position is likely to worsen, not improve.
I give some weight to this factor which favours the mother’s proposal.
Any family violence or family violence order involving the children or a member of the children’s family.
This factor is not relevant.
What orders would minimise the risk of there being further Court proceedings about the children?
There is no evidence before me to suggest either party will not comply with court orders. Given I am satisfied the mother’s circumstances are unlikely to improve on the father’s proposal, I find it more likely there will be further court proceedings if the mother remains with the children in Sydney. However, I give minimal weight to this factor.
The extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with the children, participating in decision–making about their welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the children.
Neither party complains about the other’s refusal to involve that party in decision-making for the children and I am satisfied the mother has facilitated the children spending regular time with the father.
The mother complains that the father has not always taken opportunities offered to him to spend time with the children. The mother complains, and it is not disputed, that the father did not spend the school holidays with the children, instead travelling overseas with Ms T.As already noted, the mother complains about the extent to which the father has fulfilled his obligation to support the children financially. The mother complains she has not received a fixed child support payment on which she has been able to rely. I accept her evidence and find her concern justified: the payment history between 1 September 2007 and 27 March 2008 [19] shows child support payments of between $192.92 and $993.44, at varying intervals; the mother says that she received no child support payments from the father in May 2008 (whether or not the father had made any payments to the Child Support Agency) and did not have enough money in that month to buy groceries and other necessaries. The father informed Ms Manya he was paying in excess of the Agency’s requirements but his contribution was likely to reduce in the future. Ms Manya reports, [20] “Ms Wilson implied that if she had adequate financial support she might consider living in Sydney.” Ms Manya says, [21] “the issue of child support…certainly exacerbates the existing hostilities between the couple.” As earlier noted, the father accumulated substantial child support arrears as a result of various changes to his assessed liability, but did not pay those arrears until two days before hearing.
[19] Annexure to mother’s affidavit sworn 16 May 2008
[20] Exhibit 1 at paragraph 22
[21] Exhibit 1 at paragraph 34
The mother told Ms Manya that the uncertainty of her financial position was a key reason for wanting to return to the Cairns region where she felt secure and supported. In cross-examination she says that her biggest concern is stability. Since separation, the two homes she has previously rented, one at [Z] and one at [Y] have been sold.
She found it very difficult obtaining her current premises, given the limited rental properties presently available in Sydney. She said as the time approached to vacate the [Y] property she became “frantic” and “I will never forget” the panic she felt at not being able to secure new accommodation for herself and the children. She says she had to accept the [Q] property despite the additional rent she was required to pay which she could ill-afford. She says she does not want to repeat that experience. She has only a 6 month lease and fears she may then have to move again. She wants to be in a position to save money so eventually she may, one day, be in a position to purchase her own home.
I am not satisfied the father has fully appreciated the level of financial stress the mother has been under and the negative impact this has had on the children. I am not satisfied the father has taken appropriate steps to relieve the mother of that stress. On the evidence before me, I do not accept the father has a proper basis for his view that the mother is obsessed with money and unreasonable in her financial demands on him. I accept the mother has reason to be distressed and apprehensive about her financial future.
I find this factor favours the mother’s proposal and I give it moderate weight.
Any other fact or circumstance that the court thinks is relevant.
In Ms Manya’s opinion[22]:
…if the mother’s stated difficult position continues without a solution, it is likely that the mother’s loneliness and emotional stress is likely to have a strong negative impact on the children.
[22] Exhibit 1 at paragraph 39
Ms Manya says if the mother’s situation does not change, the mother will continue to be unsettled and unhappy which may mean adverse psychological and educational consequences for children. In Ms Manya’s view, the children will experience the mother’s unhappiness and sense the mother’s discontent. She says it is important for the children that the mother’s stress be relieved because unhappiness will otherwise become part of the children’s psyche which will lead to adverse psychological and educational outcomes for the children. Ms Manya found the mother’s emotional stress very evident at interview. In her view, there is a real benefit to the children for the mother to be in a supported and familiar environment with those that love her and the children around her. If in [R], Ms Manya says the mother may be able to earn more with her parents’ help with the children. She is likely to feel much happier and more secure. Ms Manya recommends that the mother be permitted to relocate to [R] for the well being of the children.
I accept Ms Manya’s opinion on these issues and find no basis for a finding that the mother’s situation is likely to change. On the contrary, I am persuaded, with a reduction in the father’s child support payments, her position is likely to become more difficult.
I give weight to this factor which favours the mother’s proposal.
PARENTAL RESPONSIBILITY
When making a parenting order, section 61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 of the Act as education, religious and cultural, health, name and significant changes in living arrangements. The application of this presumption triggers the application of section 65DAA (1) which requires the court to:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide for (including a provision in the order) the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in section 65DAA(3) and (5).
In the present case, each party seeks an order for equal shared parental responsibility, acknowledging that the presumption applies. Neither party seeks equal time, the father recognising, supported by Ms Manya, that the children are primarily attached to the mother and need to spend the majority of their time with her. On the father’s proposal, the children would spend two out of three weekends with him, as well as one night in the “off” week as well as half school holidays. On the mother’s proposal, the children would spend at least one weekend each school term with the father.
I agree with the parties that an equal time arrangement would not be in the best interests of the children. I must therefore consider whether the children spending substantial and significant time with the father would be in their best interests. The children do not currently spend substantial and significant time with the father and on the father’s proposal, it is arguable in my view whether the children would spend substantial and significant time with him, as defined in the Act, even though the father does propose one weekday overnight in every 3 week cycle. I am not satisfied anything turns on this. Certainly, the children would spend substantially more time with the father on his proposal than on the mother’s proposal. As held by the Full Court in Taylor & Barker [23] I must weigh up the advantages and disadvantages of the mother’s proposal to relocate against the advantages and disadvantages of the children spending at least substantial time, if not substantial and significant time, with the father.
[23] [2007] FamCA 1246
As earlier noted, the mother believes the children would benefit from more time with the father and would agree to the children spending more time with him, if the court does not permit her to relocate.
Ms Manya agrees that if other factors were not present, the children would benefit from more time with the father. I accept these views. Whether or not the father’s proposal could be regarded as “substantial and significant” time, I am not satisfied such an arrangement is reasonably practicable on the mother’s proposal. The distance between the two households, one in [R], and the other in Sydney, would be too great.
Conclusion
The legislation makes clear that the children must be the focus of the inquiry. The court must consider the impact of the proposed relocation on the children’s interests and must make orders it considers to be in the best interests of the children in both the short and longer term [24]. The majority of the High Court in U v U [25] held that:
…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.
[24] W & R (2006) 35 Fam LR 608
[25] (2002) 211 CLR 238
I must assess the children’s best interests with reference to the objects of the Act and to the factors I have already referred to. Those objects and one of the two primary considerations include the children having the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
There is no issue between the parties that the children will remain living with the mother, to whom they have the closest attachment.
The issue is whether it is in the children’s best interests for the mother to relocate with them to [R] and thereby reduce the children’s face to face time with the father, or whether the mother should be restrained from moving the children away from Sydney so the children can spend increased time with the father. Ms Manya supports the mother’s proposal because Ms Manya believes the children can continue to enjoy a close relationship with the father, while the mother will receive the support she needs to be a happier and more effective parent.
Ms Manya believes the mother’s continuing unhappiness is unlikely to alter in her present circumstances, and will adversely impact on the children.
On a weighing the factors which I find support each party’s proposal, I am satisfied the mother’s proposal is in the children’s best interests. While I accept Ms Manya’s evidence that the children will initially miss their father, I also agree with her view that given the mother’s attitude to the children seeing their father, the negative impact of the move can be mitigated. I have decided the children will continue to have a strong relationship with both their parents whether they live in Sydney or in [R]. I find each parent has shown and continues to show a commitment to ensuring that this is so. I am satisfied the mother will continue to facilitate the children spending time with the father and communicating with him. I am satisfied the mother’s parenting capacity is likely to improve when she is better supported. I am satisfied, that without the need to pay rent, at least in the foreseeable future, the mother will be better off financially and therefore have a greater sense of security which will be of great benefit to the children.
On the father’s proposal, on balance I am satisfied the mother’s circumstances are likely to deteriorate, not improve. The father has been aware over a long period that the mother is finding it difficult to manage in Sydney. The father receives a secure income of almost double that of the mother. The father is settled in a new relationship with a partner who earns a full time salary as an executive. The father jointly owns a home. The father’s partner owns a second property.
Yet the father has not proposed or put in place a financial arrangement which could give the mother reassurance and a sense of certainty about her financial position. Instead, he paid his arrears of child support just two days prior to hearing. He provides no explanation as to why he could not have taken this step much earlier. On the father’s proposal, the mother will remain in Sydney with uncertainty as to her future accommodation and the cost of that accommodation. The mother will remain in a city in which she has few emotional connections, even after nearly five years of living in Sydney as a single parent.
I have concluded that the children’s best interests are best served if the mother is permitted to relocate at the end of 2008 to [R] with the children.
I have considered the orders which will best promote the relationship between the children and their father. Ms Manya recommends that the children spend 10 days in the short school holiday periods and 3 weeks of the summer school holidays and that the parties share equally the costs of travel. I have decided in large part to adopt her recommendation despite each party seeking an order for no more than half school holidays. I have also decided it is in the children’s best interests to give the father an open opportunity to spend time with the children at [R] whenever he is able to travel between school holidays. I have ordered liberal communication by telephone and other electronic means.
I am satisfied that the Orders set out at the commencement of these Reasons are in the children’s best interests.
I certify that the preceding 94 paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
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